People v Barber

[*1] People v Barber 2011 NY Slip Op 52558(U) Decided on December 29, 2011 Lockport Town Ct Tilney, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 29, 2011
Lockport Town Ct

People of the State of New York, Plaintiff,

against

Bruce D. Barber, Defendant.



11100187



Hon. Michael J. Violante, Niagara County District Attorney

(Charles F. Pitarresi, of Counsel)

Attorney for the People

Claude A. Joerge

Attorney for Defendant
Leonard G. Tilney Jr., J.

PROCEDURAL POSTURE

This matter was transferred to the Lockport Town Court from the Pendleton Town Court by order of the Niagara County Court, Judge Sara Sheldon Sperrazza, dated October 11, 2011, due to recusal requests from both Pendleton Justices.

However, prior to recusal, at the written request of the Defendant, an extensive probably cause hearing was conducted, preserved on DVD, and reviewed by this Court.

[*2]FACTS

On May 26, 2011, Gerhard Braun (Tenant) was having a problem with Gerald Gradl, Jr. (Landlord) regarding Campbell Boulevard premises in the Town of Pendleton, New York. The Defendant came to the assistance of the Tenant and "got in his landlord's face for intimidation because the (Landlord) took advantage of him (Tenant) because he barley speaks English " The Niagara County Sheriff was called and Deputy Joseph Tortorella responded. Prior to his arrival, the Defendant went home. Tortorella made several attempts, through various personnel, to have the Defendant return to the premises, even threatening to have him arrested if he did not return. Eventually the Defendant did drive his automobile to the Campbell Road premises and met with Tortorella. Defendant exited his vehicle and spoke with Tortorella. Tortorella detected a strong odor of alcohol from Defendant and he had glassy eyes, slurred speech, and poor motor coordination. Although Tortorella saw no improper operation of a motor vehicle, he requested Defendant to take certain field sobriety tests after Defendant refused an alcohol sensor screening. Defendant "passed" two (2) (finger count and alphabet) of the three (3) sobriety tests given to him by Tortorella. Only the Horizontal Gaze Nystagmus (HGN) Test was "failed by the Defendant". Tortorella's testimony as to procedure and protocol of the HGN Test was erratic in that the most necessary protocol was not followed. The deputy produced no notes, nor did he score any deviation of Defendant's pupils rendering three (3) actuals on each eye. The one leg stand (OLS) and the walk and turn (WAT) tests were never requested by Tortorella.

Definition:

Probable cause ." exists where the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed" Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 39 A.L.R. 790. See also People v. Oden 36 NY2d 382, 368 NYS 2d 508 (1975)

Standard of Review:

In People v. DeBour, 40 NY2d 210 at 223, 386 NYS 2d 375, 352 NE 2d 562 (1976), the Court of Appeals set forth a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity. Level One permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; Level Two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; Level Three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; Level Four arrest, requires probable cause to believe that the person to be arrested has committed a crime.

DECISION

Approaching a stationary vehicle is a minimal intrusion which is not the equivalent of a stop. See, People v Harrison 57 NY2d 470, 457 NYS 2d 199, 443 NE 2d 447 (1982). This situation is analogous to approaching a citizen on the street to request information and therefore the courts use the same four-tiered analysis set forth in People v DeBour supra, to justify the conduct of the police. See, People v Ocasio 85 NY2d 982, 629 NYS 2d 161, 652 NE 2d 907 (1995): and People v Harrison, supra. In any event the Defendant exited his vehicle and went toward Deputy Tortorella, all be it at his previous direction.

Deputy Tortorella reached levels one (1) and two (2) of DeBour. He was investigating a complaint and was required to request information from individual(s) who may have been involved in the confrontation between the Landlord and Tenant. But Tortorella's investigation turns from the Landlord/Tenant issue to a DWI arrest. Level three (3) authorizes Tortorella to stop and detain the Defendant if reasonable suspicion exists that the Defendant was driving while intoxicated. Generally, glossy eyes, smell of alcohol, slurred speech and poor motor coordination coupled with the failure of the standardized road sobriety tests (SRSTs) are enough to establish intoxication [People v Ritzers 158 AD2d 628 (2d Dept)]; or at least impairment [People v Lizzio 178 AD2d 598 (3d Dept) appeal denied 79 NY2d 921];. Here, however, the Defendant did not fail the SRSTs except for the HGN Test.

Unlike other field sobriety tests such as the walk-and-turn test and the one-leg stand, which simply test a person's motor coordination and ability to think and speak clearly, the HGN test deals with involuntary physiological movements of the eye and how such movements may be affected by the consumption of alcohol and/or drugs. As such, the HGN test if considered "scientific" in nature, placing it within the ambit of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). See also People v. Wernick, 89 NY2d 111, 651 N.Y.S.2d 392 (1996); People v. Wesley, 83 NY2d 417, 611 N.Y.S.2d 97 (1994); and People v. Middleton, 54 NY2d 42, 444 N.Y.S.2d 581 (1981).

The appellate courts of this state have made clear both (a) that "the courts of our State have not conclusively determined that HGN is generally accepted as reliable," People v. Heidelmark, 214 AD2d 767, 769, 624 N.Y.S.2d 656, 658 (3d Dep't 1995), and (b) that a trial court commits error "in allowing testimony concerning the HGN field sobriety test without a proper foundation as to is scientific acceptance or reliability." id. 214 AD2d 769, 771, 624 N.Y.S.2d 656, 658. See also People v. Erickson, 156 AD2d 760, 763, 549 N.Y.S.2d 182, 184 (3d Dep't 1989) ("County Court acted improperly in allowing testimony at trial concerning the field sobriety test known as Horizontal Gaze Nystagmus' without a proper foundation as to its scientific acceptance or reliability "); People v. Torrey, 144 AD2d 865, 866, 534 N.Y.S.2d 807, 809 (3d Dep't 1988) (same); People v. Saputo, No. 87-211 (App. Term, 9th and 10th Jud. Dists. 4/14/88). See generally Romano v. Stanley, 90 NY2d 444, 661 N.Y.S.2d 589 (1997).

Nonetheless, a disturbing trend is emerging in New York with regard to the HGN test. Specifically, various courts are holding so-called Frye hearings on the issue of the scientific acceptance and reliability of the HGN test, and are holding that the HGN test satisfies the Frye standard, despite shockingly little expert witness testimony presented [*3]at the hearings. See, e.g. People v. Miley, 12/6/2002 NYLJ 30, col. 6 (Nassau Co. Ct. 2002); People v. Prue, 2001 WL 1729710 (Franklin Co. Ct. 2001), aff'd, 8 AD3d 894, 779 N.Y.S.2d 271 (3d Dep't 2004); People v. Vanderlofske, 186 Misc 2d 182, 717 N.Y.S.2d 450 (Greene Co. Ct. 2000); People v. Shirley, Indictment No. 99-739 (Broome Co. Ct. 2000); People v. Tomeny, Docket No. 99-29384 (Ithaca City Ct. 1999). Thus, the courts of this state are concluding that the People may introduce the HGN Test and results, provided the test was properly administered.

This Court declines to take that "leap of faith"[FN1] and in any event finds that the HGN Test in this case was not properly administered. Lacking other "failures" of the standardized road side sobriety tests, Deputy Tortorella did not reach level four of Debour which required probable cause to believe that the Defendant has committed a crime. This Court holds that an arresting officer must conduct or attempt to conduct the three (HGN, WAT and OLS) nationally recognized tests to establish probably cause to arrest. While this court would conduct a Frye hearing at trial on the introduction of the HGN Test results, it recognizes failure of the NHTSA sobriety tests (HGN, WAT and OLS) does establish probable cause to arrest. Here, Tortorella did not administer the HGN Test correctly, nor did he attempt to or conduct the WAT or OLS tests.

Accordingly, the VTL §1192(3) charge of Driving While Intoxicated is dismissed. The VTL §1194(1)(B) charge of Refusal to Take a Breath Test is not dismissed as Deputy Tortorella had a founded suspicion of criminal activity which allowed him to conduct the SRSTs. The alcohol sensor test is a predicate to the SRSTs and survives the probable cause to arrest for a crime issue.

Dated:December 29, 2011

Lockport, New York

__________________________________ Hon. Leonard G. Tilney, Jr.

Lockport Town Justice Footnotes

Footnote 1: The initial 1977 National Highway Traffic Safety Administration (NHTSA) field sobriety test studies have been peer reviewed and attempts to duplicate the study results have been unsuccessful. See "Field Sobriety TESTS: Are they designed for failure?" by Cole S. Nowaczyk (1994) Perceptual and Motor Skills Vol. 79 Part I pp 99 — 104 and "The Horizontal Gaze Nystagmus TEST: Fraudulent Science in the American Courts" by J.L. Booker (2004) Science & Justice Vol. 41 pp 133-139; later studies by the NHTSA in 1981 and 1983 found the HGN TEST to be only seventy-seven percent accurate when not administered with the walk and turn (WAT) and the one-leg stand (OLS) TESTS. Even then, the researchers found, when all three TESTS (HGN, WAT and OLS) were combined, an eighty-three percent accuracy rate was established.