People v Barto
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People v Barto 2016 NY Slip Op 32667(U) December 2, 2016 County Court, Wayne County Docket Number: 16-30 Judge: Daniel G. Barrett Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Al a Term of the County Court held in and for the County of Wayne at the Ilall of Justice in the Town of Lyons, New York on the 24'h day of August, 2016. PRESFNT: Honorable Daniel G. Barren County Court Judge STATE OF NEW YORK COUl'\TY COllRT COUNTY OF WAYNE TI IE PEOPLE or 'TI-IE STATE OF NEW YORK -vs- Tf IOMAS BARTO. DECIS PROBA Hl.JNTL HE ON ON LE CAUSE Y AN D MAPP IUNG Ind. No. 16-30 Defendant Appearances - People - Christopher Bo:<elman Esq. Defendant - Richard C. Roxin. Esq. The Defendant filed a motion requesting a Probable Cause, Huntley and Mapp Hearing. The same was conducted on the above date. Testimony and evidence was provided hy the District Attomey·s omce. The Defendant did not testi f}' nor provide any other ev idence. Since the hearing date :he Defendant moved to renew a d reargue the Huntley I Icaring. The Court denied that motion. Both counsel have sul:imitted closings and/or memorandum of law with regard to their position. Admitted into evidence were the following documents: Exhibit 1 Exhibit 2 Exh ibit 3 Exhibit 4 Exhibit 5 - Vehicle impound and inventory record of Defendan 's vehicle on August 9. 2015: I Statement of Defendant given to Trooper Wasko on August 9, 2015 at the accident scene at 1:37 P.M. and 2:01 P.M.; A copy of the Miranda Warnings given to the Defendant at the State Police Barracks in Waterloo by Trooper Wasko at 4:39 P.M.; Statement of Trooper Wasko on August 9, 20 J5: Consent form of Defendant on August 9. 2015 at 8:15 P.M. consenting to a blcod draw at Geneva General Hospital. -1- [* 2] Trooper Matthew Darrell testified that he came upon an accident on Route 14 north of Ridge Road in Sodus. New York on August 9, 2015. He saw a lco uple of people standing on the right shoulder of the road and a motorcycle. When he arrived at the scene he realized that it ·was an accident and c-ontacted 911. He saw a male and fema le victim . He fe lt the pulse of the male victim and determined he was probably dei eased. He then provided first aid to the female victim until the first responder came tot e scene. He went to speak to the operator of the truck that had apparently been in th accident with the motorcycle. The driver of that truck was Thomas Barto. Mr. Barto indicated he was driving north when he saw the motorcy::le about one-half mile away an1 the next thing he knew he was along the side of the road and being notified by On-Star thft he had been in an accident. Trooper Barrett requested that an investigator and sergeant Jbc dispatched to the scene. He had no further interaction with Mr. Barto. However he did testify that the Defendant's responses to his questions were appropriate, that his speech was clear and there was no slurring. Trooper Christopher D. Lander testified that he arrived at the scene of the accident. He blocked the road fifty (50) yards no1 to block any southbound traffic. I le did have a 1h conversation with Trooper Barrett. He also spoke to Investigator Dauer at the scene. It became his job to inventory the pick up and impound the same. While he was searching the Defrndant's vehicle he found a blue/white cooler in the back seat. There was a cigarette bo:{ in the cooler. When he inspect d the cigarette box he found three bags of a substance he believed to be marihuana. H eventually did seal that bag and take it to the evidence locker at the Wolcott barracks. When he went to search the Defendant's pick up truck he found that the door was open. There was no noticeable smell or aroma of marihuana. There wa~ no drug paraphernalia in the truck. The cooler was found on the floor in the bac~ seat area behind the driver's side. -2- [* 3] Trooper \1auhew Kent arrived at the scene. It became his role to make sure the scene was safe and lock up any vehicles. He was directed by lnvestigat r Bauer to take over the standard lield sobriety tests of the Defendant. He knows that t,e HGN test was done by Trooper Schepis. Trooper Ker.I advised that he was expericnce<i in doing field sobriety tests. He asked the Defendant to do the walk and tum test. He advised the Defendant failed that and that his balance was off. he missed heel to toe several times. he took the wrong number of steps and did the wrong turn. ln addition he tried to b lance himself on the tum. With regard to the one leg test the Defendant raised his left leg for approximately three (3) seconds. Then he tried to raise his left leg again for about twelve (12) seconds and on the third time for approximately sixteen ( 16) seconds. In addition the Defendant swayed and hopped while he was attempting to raise his left leg. The Defendant did do the finger count test and passed the same. n the Romberg test he failed that test because he was sway ing and he only counted for a proximately twenty (20) seconds when he was required to do for at least thirty (30) seconds. Trooper Kent testified that in his opinion the Defendant was under the influence of something other than alcohol. At that point he was aware the Defendan denied using alcohol, drngs or any prescription medication. Trooper Kem acknowledges the Defendant seemed t-0 understand his questions, chat he answered his questions appropriately. that he did not fall down, stagger or stumble. He did not smell rnarihuana on the Defendant and the Defendant's eyes did not ~eem glazed or blood shot. .. -.>- [* 4] Trooper Wasko then arrived at the scene. It was his role to obtai a statement from the Defendant. He talked with the- Ddendant and the Defendant a~mitted driving the truck but he doesn't remember the collision. The Defendant states he saw the he knows he motorcycle about one-half mile coming from the north and the next th int was in an accident. The Defendant stat·~d he thinks he might have black! d out. Trooper Wasko was then directed by Investigator Bauer to obtain a written statement. He testifies that it was a hot day and that he then took the Defendant into his patrol car where there was air conditioning. He had the Defendant tell h·s story first. The second time through he typed out a statement on the computer. The Def ·ndant read it afterwards, stated it was accurate and then signed the same at 2:0 I P.M .. He was then directed by Investigator Bauer to add to the statement the Defendant's response as to whether he had any medical conditions. The Defendant stated he did not. Trooper Wasko added that to the statement and the Defendant initialed the same. At that time he also took the Defendant's cell phone and the Defendant consented to all w the State Police to search the same. The Trooper admits that he took the statement as shown by Exhibit 2 without giving the Defendant hi s Miranda Warnings. However at that time he w s merely taking a statement from the Defendant as to what he remembered about the ace dent. After speaking with the Defendant Trooper Wasko was directed to take the Defendant to see a drug recognition expert, Trooper Campbell, at the Waterloo State Police Barracks. Trooper Wasko was advised by Investigator Bauer at tl e time that marihuana had been found in the Defendant's truck and the Defendant' as aware of it before they left to go to Waterloo. When Trooper Wasko arrived at the barracks he met with Trooper Campbell. Trooper Campbell learned that marihuana had been found in the Defendf nt's truck. He thereafter gave the Defcndanrs his Miranda Warnings as shown by Exhibit 3. After the Miranda Warnings the Defendant .was speaking to Trooper Campbell and admitted to smoking a small bowl of approximately .5 grams of marihuana at approximately 7:30 A.M. on August 9, 2015. -4- [* 5] Trooper Wasko was then directed to obtain a blood sample from the Defendant. He spoke to the Defendant. The Defendant signed a consent form as sht wn by Exhibit 5 ut approximately 5: 15 P.M .. Trooper Wasko took the Defendant to Gen va General I lospital to draw the blood. The Defendant did not ask for a l awy~r or n akc any phone calls. He also did not threaten the Defendant about taking the test nor did he make any promises to the Defendant if in fact he took the test. Trooper Wasko testifies he was with the Defendant for approximptcly five to six hours on August 9. 20 15. He was able ~ o understand the Defendant and his speech was not slurred or mumbled. He gave appropriate responses to questions. He saw the Defendant walk to and from him police vehicle at the accident scene, to bnd from the Waterloo barracks and to and from the hospital. He stated the Defendant had no problem walking. The Defendant was not placed under arrest on August 9. 2015. Trooper Wasko took the Defendant to the Williamson State Police Barracks and another trooper took him home. investigator Thomas Crowley then testified. He has been with the State Police 22 years and is a senior investigator. The M homas Barto case was assigned to in October. 2015. lnvestigator Crowley received the toxicology reports and determi cd he needed to f speak to the Defendant. He appeared at the Defendant's residence on F · bruary 3, 20 16 at approximately 5:00 P.M .. The Defendant rents the bottom floor of a res dence at 93 I Ridge Road, Ontario, New York. Investigator Crowley testified he told the Defendant he needed to speak to him about the toxicology reports. He said the Defendant was cooperative and agreed to speak lo him. He did identify himself and show the Defendant his badge. He 1id not give the Defendant any Miranda Warn ings. He was aware the Defendant receive his Miranda Warnings on August 9, 20 15. -5· [* 6] Invescigator Crowley testified the Defendant stated he had slept at a female friend's house on August 8, 20 I 5. He awakened at approximately 4:00 A.M. and went to his home. He brought a recliner from his friend's home and unloaded that. Then had some breakfast, watched TV and took tv10 Al eve. T he Defe ndant stated at approximately 7:30 A.M. or 8:00 A.M. he had one bowl of marihuana. Around I I :00 A.M. he ate lunch. He then smoked another bowl of marihuana about 11:00 A.M.. He then mowed the lawn and decided to go fishing. Investigator Crowley testifies that he had told the Defendant that his initial statement was not consistent with the toxicology results, that is that the ~cfendant only smoked one bowl of marihuana at 7:00 A.M .. That is when the Defenddnt admitted to smoking another howl at 11 :00 A.M.. In addition he acknowledged that he smoked three to four times a week. Investigator Cro\ 1ley advised the Defendant he wanted to record the conversation or write a statement for the Defendant to sign. The De fendant declined to do that. In addition Investigator Crowley admitted the reason he went to the Defendant's residence was to confr<?nt him about the toxi cology reports which were inconsistent with the Defendant' s previous statements to the State Police on the day of the accident, including his admission to Trooper Campbell about smoking marihuana at approximately 7:30 A .M. on August 9, 20 15. I The Defendant firstly argues that there is no probable cause for tJ e Defendant's arrest. However the Court notes the Defendant was not arrested on Au~~st 9, 2015. The Defendant was only arrested after he was indicted by the Grand Jury on rv1arch 23. 2016. The Court previously inspected the Grand Jury Minutes and issued a Debision on or about July 20, 2016 finding that there was sufficient evidence presented to the lGrand Jury regarding the charges the Defondant was indicted for. -6- [* 7] Obviously the State Police djd not have the results of the toxicol gy report on August 9. 2015. That information was only available until later. That i when Investigator Crowley confronted the Defendant about his previous statement to Trooper Campbell abow smoking marihuana only al approximately 7:30 A.M. on August 9. 2015.The Defendant then admitted to Investigator Crowley that he also smoked at l l :00 A.M. and smoked three to four times a week leading up to the dccident. In addition Trooper Kent testified that the Defendant failed certain field sobriety tests and in his opinion the Defendant was under the influence of something other than alcohol. Secondly the defense requests the Court suppress the statements 1 adc by the Defendant to Trooper Wasko while in the patrol car at the accident seen as set forth in Exhibit 2. Trooper Wasko testified that he was asked to obtain a statement from the Defendant regarding the accident itself. Trooper Wasko states that he a ked the Defendant to sit in his patrol vehicle where there was air conditioning. T rooper Wasko testifies he was not aware when he was speaking to the Defendant that 1~arihuana had been found in the Defendant" s vehicle. The trooper did not ask the Defendant any inculpatory questions but merely asked the Defendant what happened. The Court find s that Trooper Wasko's questioning was investigat >ry in nature, that is to obtain infomrntion from the Defendant to help him in a determinatihn of how the accident occurred. The Defendant was not in custody at the time and voluntarily talked to Trooper Wasko. Trooper Wasko took the Defendant to sec Trooper Campbell at t~e Waterloo Police Barracks, he gave the Defendant his Miranda Warnings at approx)mately 4:39 P.M. as shovm by Exh ibit 3. The trooper had learned prior to leaving the accident scene in Sodus that mari huana had been found in the Defendant's vehicl . The Defendant voluntarily waived his Miranda Warnings and then spoke to Trooper Cai p bell. A statement of that conversation is shown in Exh ibit 4. -7- [* 8] The Court finds those statements were voluntarily made by the Dle fendant after being advised of his Miranda rights and waiving the same. In addition the Court finds that the marihuana seized at the scene from the Defendant's vehicle did not require probable cause. The marihuana sei ed is at least preliminarily admissible at trial. The Defendant was in a fatal accident. It was apparent that he caused the accident. The police are allowed to do an investigation at the accident scene and tbsearch and inventory the defendant's vehicle. Inventory searches do not require pr bable cause, People v Redden. 27 A.O. 3d 1173, People v Quackenbush. 88 N.Y. 2d 534. The Defendant further argues that the statements made by the Defendant to Investigator Crowley at his residence on or about February 3, 2016 wer involuntarily made and shou ld be suppressed. The Court notes that the Defendant wa at his home where the conversation took place. He invited the Investigator into his home. This was not a custodial interrogation therefore no Miranda Warnings were required to be given. The Defendant voluntarily made the statement to Investigator Crowley at the time. The Defendant was certainly aware that he did not have to make a statement rt the time as evidenced by his advising Investigator Crowley he d id not want his statelncnt recorded nor did he wish lo sign a statement. Lastly the Defendant argues that the blood sample drawn at Geneva General Hospital on August 9, 2015 should be suppressed in that the Defendant qid not voluntarily consent to the drawing of his blood. The Court notes that adlnitted into evidence as Exhibit 5 is the consent fonn signed by the Defendant while in the presence of Trooper Wasko. Trooper Wasko testified that he asked the Defendant about volun ari ly giving a blood sample and the Defendant agreed. The Trooper testified that he did not in any way threaten the Defendant. promise anythi ng to the Defendant or advise anything would happen to him as a result of his refusal to give a blood sample. -8- [* 9] The Defendant was not under arrest at the time. The uncontested evidence establishes the Defendant agreed to thT administration of a blood test, People v Gallow, 133 A.D. 3d 1088. Where the police ~ossess reasonable grounds co believe that a driver has been driving under the influence. they are authorized to direct that the defendant's blood be drawn with the voluntary conscntlof the driver to submit to a chemical test. They arc not required to arrest the driver before obtaining such consent. Arrest requirement in the implied consent law has no applicati n where a driver expressly and voluntarily consents to the administration of a blood alcol1ol test, People v Centerbar. 80 A.D. 3d I008. The Cou11 finds that the Defendant's statements as testified to ar voluntarily made and arc admissible at trial. That in addition the search of the Defendant's vehicle was lawful, that the results of that search are admissible and that lastly the D fondant I voluntarily consented to providing a sample of his blood to the State Police. The Defendant's motion to dismiss the case for lack of probable Jausc, for suppression of the Defendant's statements and for suppression of the blood sample are hereby denied. Dated: December 2. 2016 Lyons. New York ~....::::===:::::::..-~_ - _:________~ Daniel G. Barrett County Court J ulge -9- --~
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