People v Ramsey

[*1] People v Ramsey 2012 NY Slip Op 50672(U) Decided on April 16, 2012 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2012
Supreme Court, Bronx County

The People of the State of New York,

against

Dwight Ramsey, Defendant.



069905C2009



For People of the State of New York

Robert T. Johnson, Esq.

District Attorney, Bronx County

by: Gabriel Martin, Esq.

Aaron Kaplan, Esq.

Ilya Kharkover, Esq.

For Defendant

Neville Mitchel, Esq.

225 Broadway, Room 1410New York, NY 10007-3771

Dominic R. Massaro, J.

Pursuant to CPL §710.20(1) and §710.20(5),[FN1] Defendant Dwight Ramseyseeks suppression of evidence, that is scientific tests and statements allegedly obtained by police during his arrest on November 1, 2009, in Bronx County. In response, the Court conducted a Huntley-Johnson-Ingle [FN2]hearing inquiring into what Defendant characterizes as unreasonable police conduct during his arrest on Vehicle [*2]& Traffic Law Article 31 ("Alcohol and Drug-Related Offenses") charges.[FN3] The Court took testimony on February 23, 24, 27,[FN4] and 28, 2012. Documentary evidence was received at the hearing and two police witnesses (Officers Sean Maguire and Sidney Wise) and Defendant testified.

Defendant's Position

Defendant demands suppression because the disputed evidence recovered is the fruit of an unlawful arrest. He argues the prosecutor's case depends upon evidence obtained in violation of constitutional rights: US Const. amends IV and XIV, and NY State Const., art 1 §12 (see generally, Dunaway v. New York, 442 US 200 [1979]). Defendant says no reason existed for law enforcement to approach him; he was neither operating a vehicle nor behaving in an improper manner. Therefore, Defendant could not have committed a traffic infraction justifying police intervention and his arrest.

The motion is based upon separate grounds: (1) Defendant says the arrest violates his rights under the IV and XIV Amendments and NY State Const, Article 1, §12, because no probable cause existed and the police failed to obtain a warrant, requiring suppression (see generally, Mapp v. Ohio, 367 US 643 [1961]); and (2) he avers chronological violations of Vehicle & Traffic Law §1194 which requires suppression of breathalizer and blood alcohol level tests (see generally, People v. Victory, 166 Misc 2d 549 [Crim. Ct. Kings 1995]). Finally, statements during custodial interrogation, which Defendant said was conducted without Miranda warnings, cannot be used in this prosecution (see generally, Dunaway v New York, supra.).

At the hearing's conclusion, Defendant's counsel summarized the suppression argument as required because the police lacked probable cause to arrest or search the vehicle. Defendant said the police justified approaching his automobile upon grounds the neighborhood was a quiet one and their erroneous determination that the ignition was engaged. Clearly, the People failed to show Defendant was illegally parked or that Defendant received any tickets that could justify an arrest. Contrasting Defendant's truthful testimony, Defendant counsel compared his client's words with confusing, conflicting and forgetful testimony of the prosecutor's witnesses. Stated another way, Defendant argues the prosecutor failed to show any justification whatsoever existed for the officers to approach Defendant. Prosecutor's Position

The District Attorney opposes suppression. In this regard, use of street videos and/or videos taken at the precinct, depicting Defendant is arguably proper and not suppressible because Defendant could have no reasonable privacy expectations under the circumstances. Clearly, Defendant was on a public street and law enforcement could view him at the wheel, giving whoever the arresting officers were reasonable cause to approach his car. Further, no issue exists about physical testing because Defendant voluntarily submitted to breathalizer and other testing, removing any admissibility objection.

Finally, the prosecutor says her witnesses gave reliable testimony about parking and Defendant's actions in the early morning. Probable cause arises from the fact that Defendant's automobile blocked a crosswalk. The combination of Defendant being at the wheel with ignition engaged and alcohol fumes give the officers probable cause to search the vehicle and to arrest.

Factual Determination

This `incident occurred on the night of October 31, 2009 (Saturday) and the early morning of November 1, 2009 (Sunday) in the Gun Hill section of Bronx County. In this regard, the Court credits [*3]Defendant's testimony and finds problematic the People's as unconvincing in a number of significant respects.

By way of background, Defendant is a class one machine operator, employed by Metro-North Railroad during the past thirty years. While originally living at the location where the incident occurred, Defendant now resides elsewhere in Bronx County.

On the Saturday, Defendant visited his sister to assist in planning for a barbeque the next day; he was delivering food for the celebration. Defendant's sister and her family reside at 3316 Barnes Avenue, which is located one house away on the opposite side of the street from where Defendant parked his vehicle (Tr. pages 126 to 129). The parking location does not include a cross walk or disability access (Tr. page 134). No dispute exists that Defendant was drinking with his family, but he says they persuaded him not to drive home that night.[FN5] Notwithstanding, while Defendant did not operate the vehicle in any way, he did accommodate a female friend by bringing her to the car to select certain CDs she expressed interested in hearing. The CDs were part of Defendant's car audio collection and were kept in the vehicle. Regardless, Defendant says he did not turn on the car's ignition and did not move the car from its original parking spot (Tr. pages 135 and 138).

Police Activity

At the time of the incident, the prosecutor's first witness, Officer Maguire, was assigned as a Condition Unit Officer in the 47th Precinct. As a member of the Unit, he was charged with investigating DWIs and community issues in the Gun Hill neighborhood, a generally residential area. While on duty, Maguire was patrolling the neighborhood in uniform in a marked radio motor patrol (RMP) vehicle when he saw an automobile parked on the block at Barnes Avenue.

Maguire and his sergeant were on a tour beginning at 6:00 p.m. and ending at 2:00 a.m. when they observed Defendant's car parked on Barnes Avenue with Defendant seated in the driver's seat; Maguire saw an adult female leaving the vehicle, but instructed her to remain while the officers investigated the situation. Maguire says he saw Defendant sitting behind the steering wheel, key in the ignition, properly facing northbound on the northeast corner of Barnes at Bartholdi Street, an area Maguire described as a "dead block" with generally no parking (Tr. page 11).

The witness said he determined Defendant was intoxicated based upon alcohol smell in the car, Defendant's stumbling when exiting the car and needing to lean upon the auto for support. Further, Maguire describes finding an open Hennessy bottle in the car (Tr. page 13). Later, the officer claimed difficulty obtaining Defendant's name when preparing the needed pedigree information at the precinct.

Concerning whether Defendant's car was blocking a crosswalk, Maguire could not explain the lack of a summons or other ticket issued against Defendant and no independent proof exists that Maguire discussed the parking situation with his patrol partner or the prosecutor (Tr. pages 24 and 25). Likewise, the witness had difficulty identifying Defendant's car and did not remember any restricted parking signs in the area (Tr. page 22). While the car's lights were functioning, Maguire failed to explain how he determined the ignition was engaged, but only "assumed" the engine was running (Tr. page 23). Further, nothing in the record shows Defendant moved the car during the period in question (Tr. page 32).

The prosecutor's next witness, Officer Wise, also a neighborhood patrol officer, testified alternatively that he arrested Defendant (see, Tr. page 95) and contradictorily that Defendant was already under arrest when he arrived. Whatever, Wise clearly took Defendant into custody at 1:24 a.m. on Sunday. Defendant was arrested upon grounds that he was "operating" an automobile under the influence [*4]of alcohol. In determining to transfer Defendant to the precinct, Wise admits he depended upon information supplied by other officers at the scene and not upon personal observation (Tr. page 59).[FN6]

Wise transported Defendant in the patrol car to the nearby 47th precinct (Tr. page 42) where the officer oversaw Defendant's processing by the Intoxicated Driver Testing Unit (IDTU).[FN7] Such processing includes videotaping those charged with alcohol violations and administering chemical tests by highway police officers (see, Tr. page 44).

Wise claims no force or compunction was used against Defendant to compel consent to chemical testing, to which he says Defendant voluntarily agreed. The tests included a breathalizer and blood scans which produced positive alcohol consumption results (2.13) (see, Tr. pages 47 to 49). In addition, in the officer's professional judgment, Defendant intoxication was shown by acting erratically and, in fact, he asserted two attempts to successfully complete breathalizer testing (Tr. page 47).

Like Maguire, Wise confirmed he issued no summons against Defendant for parking in a cross walk and could not remember whether Defedant in fact was so parked (Tr. page 62). Wise was unable to confirm whether Defendant received Miranda warning because, as alternatively stated at various times, Defendant was already under arrest when the witness arrived at the scene (Tr. page 63). On the second issue presented at the hearing, Wise affirms Defendant was arrested at 1:20 a.m., but the chemical tests were not performed until 3:46 a.m.(Tr. page 66).

Legal Discussion

The Court turns first toward that branch of Defendant's omnibus motion, pursuant to CPL §710.20(1), which seeks to suppress evidence obtained by the police that could be used against him in the instant prosecution. In determining "probable cause" the Court must find two elements: (1) a violation of law occurred and (2) Defendant was the person who committed the violation.

The crux of probable cause here is whether Defendant was "operating" his vehicle in a manner foreseen by article 31 of the Vehicle and Traffic Law. The term "operate" is broader then the term "drive" and is established upon proof beyond a reasonable doubt that Defendant had recently driven the vehicle or by proof he was seated at the wheel with the motor running and with a present intention of placing the vehicle in operation (see generally, People v. Dalton, 176 Misc 2d 211 [2nd Dept., App. Term, 1998]).[FN8] (See generally, People v. Haddock, 2001 NY Slip Op 40138U [Nassau County. Dist. Ct., 1st Dist., 2001] [Mapp hearing required where ignition was not engaged)(see also, People v. Hopkins, 22 Misc 3d 1137A [Just. Ct., Lockwood Twn, 2009])(but see, People v. Key, 81 AD2d 805 [1st Dept. 1981])

In this instance, because the hearing record lacks evidence that Defendant had either moved or intended to move his vehicle when the police approached, Defendant convinces that his privacy expectation was violated and the police lacked probable cause to search the vehicle or to arrest him.[FN9] [*5]Consequently, the vehicle search produced only tainted evidence that must be suppressed. Further, the Court concludes Defendant's reasonable privacy expectation in his automobile was violated because no evidence exists Defendant moved or intended to move his car from the location where he parked the vehicle the night before (see generally, People v. Nicodemus, 247 AD2d 833 [1998] [rules regarding standing for automobile passengers]) (see generally also, People v. Ramirez-Portoreal, 88 NY2d 99 [1996]) (see generally. People v. Bradford, 61 AD3d 1419 [4th Dept. 2009]).

Lack of probable cause is further underscored by Wise's testimony he arrested Defendant and his alternative testimony that Defendant was already under arrest before he arrived. Under any circumstances, Wise did not observe Defendant committing any Vehicle & Traffic Law violations for which he was arrested. Further, both Wise and Maguire could not establish that the arresting officer gave Miranda warnings to Defendant, undermining admissibility of any custodial statements.

Concerning whether breathalizer/blood tests are to be suppressed, the parties focus upon the fact that the tests were performed in excess of time allowed under Vehicle & Traffic Law §1194(2)(a)(1). That the tests were conducted in more than two hours after arrest does not decide the issue. At this point, Defendant is no longer deemed to consent to the testing. A two-hour time limit is not an absolute rule, proscribing admission of test results regardless of a driver's consent. Instead, Vehicle & Traffic Law §1194(2)(a)(1)'s two-hour rule has no application where actual, uncoerced consent is given, and test results are otherwise admissible at trial (see generally, People v. DR, 23 Misc 3d 605 [Sup Ct. Bronx 2009]).

Conclusion

Upon this record,[FN10] the Court determines that the police lacked probable cause to approach Defendant's automobile, thus requiring suppression of evidence obtained at the arrest site. The Defendant's motion seeking suppression of physical evidence and statements obtained by police during his November 1, 2009, arrest, is GRANTED.

Likewise, lack of Miranda warnings requires suppression of Defendant's statements given during arrest processing. Without probable cause to show Defendant drove or intended to drive his automobile, the police lacked authority to conduct chemical testing envisioned by Vehicle & Traffic Law §1194(2)(a)(1) (see generally, Echols v. Tofany, 34 AD2d 930 [1st Dept. 1970] [no evidence supports conclusion petitioner actually drove vehicle while intoxicated that would justify chemical test for intoxication).

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

April 16, 2012

DOMINIC R. MASSARO, JSC Footnotes

Footnote 1: CPL §710.20 provides, in pertinent part, that "[u]pon motion of a defendant who (a) is aggrieved by unlawful or improper acquisition of evidence and has reasonable cause to believe that such may be offered against him in a criminal action, . . . a court may, under circumstances prescribed in this article, order that such evidence be suppressed or excluded upon the ground that it

(1) Consists of tangible property obtained by means of an unlawful search and seizure under circumstances precluding admissibility thereof in a criminal action against such defendant. . . ."

(5) Consists of a chemical test of the defendant's blood administered in violation of the provisions of subdivision three of section eleven hundred ninety-four of the vehicle and traffic law . . . or any other applicable law. . . .

Footnote 2: See, People v. Huntley, 43 NY2d 175 [1977]; People v. Johnson, 63 NY2d 888 [1984]; see generally, People v. Tashbaeva, 938 NYS2d 873 (Crim. Ct. Richmond 2012).

Footnote 3: The Prosecutor maintains Defendant is guilty of operating a motor vehicle under the influence of alcohol (see, Vehicle & Traffic Law §1192[1]; § 1192[2]; § 1192[2-a]; and §1192[3]).

Footnote 4: No testimony was taken on February 27, 2012 because the prosecutor was unable to produce a police witness, one Sergeant Downes, who was the arresting officer's partner on patrol on the evening/morning is a question. Thereafter, Downes was never called upon to testify.

Footnote 5: Defendant's brother in law was sharing a bottle of Hennessy cognac that he brought from the United States Virgin Islands to share with Defendant (Tr. page 140).

Footnote 6: Officer Wise testified that the records do not state the address where Defendant's car was parked (Tr. page 84).

Footnote 7: At various times in the transcript, the IDTU's location was otherwise stated to be at the 45th precinct.

Footnote 8: The New York State Criminal Jury Instructions phrases the charge concerning "operation" of a motor vehicle by definition (see generally, 3 CJI[NY] Vehicle & Traffic Law §§1192[1], [2] & [3]): "To operate a motor vehicle means to drive it. A person also "operates" a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion, and when the motor vehicle is moving, or even if it is not moving, the engine is running."

Footnote 9: If Defendant was discovered behind the wheel with the engine running and key in the ignition, that would establish the element of operation without necessity of proof that Defendant actually placed the vehicle in motion (see generally, People v. Long, 34 Misc 3d 151A(2nd Dept., App. Term, 2012]). Here, however, the prosecutor lacked convincing evidence that the ignition was engaged. Further, it is not unreasonable to find that an automobile generally possess the ability to operate its vehicle audio system, including radio and CD player, without actually engaging the ignition. Thus, Defendant's claim he could entertain a female guest by playing his CD player without engaging the ignition is surely plausible.

Footnote 10: In deciding the instant motion, the Court read (1)Defendant's Notice of Omnibus Motion; Affirmation of Henry Eisenberg, Esq.; (2) affirmation in opposition of Ilya Kharkover, Esq., and (3) hearing transcript.