People v Jace

[*1] People v Jace 2017 NY Slip Op 50450(U) Decided on April 10, 2017 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2017
District Court of Nassau County, First District

The People of the State of New York,

against

Juxhino Jace, Defendant.



CR-017122-16NA



Hon Madeline Singas, Nassau County District Attorney

The Pickney Law Firm, Attorney for Defendant
Andrew M. Engel, J.

The Defendant is charged with driving while intoxicated per se, common law driving while intoxicated, operating an uninsured motor vehicle and operating an unregistered motor vehicle, in violation of VTL §§ 1192(2), 1192(3), 319(1) and 401(1), respectively.

On January 20, 2017 and January 23, 2017, pursuant to a stipulation of the parties, this court (Engel, J.) conducted a hearing to determine issues involving probable cause to arrest and search the Defendant, and the application of alleged coercion and the violation of the Defendant's rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) to any statements he allegedly made to members of law enforcement.

Where a defendant challenges the legality of his arrest, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 NY2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses, 32 AD3d 866, 823 N.Y.S.2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 N.Y.S.2d 696 (2006) Once the prosecution has met their burden, the Defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 N.Y.S.2d 161 (2nd Dept. 1963) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People's case in chief at trial. People v. Huntely, 15 NY2d 72, 255 N.Y.S.2d 838 (1965); People v. Valeruis, 31 NY2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 N.Y.S.2d 625 (1977).

FINDINGS OF FACT

The People attempt to meet their burden through the testimony of Police Officer Marc [*2]Tosi and Police Officer Lora Aigotti. The Defendant did not present any witnesses. Based upon the officers' testimony the court makes the following findings of fact:

On July 5, 2016, at approximately 11:55 p.m., Officer Tosi was alone, on duty, in a marked patrol vehicle, when he received a radio notification to respond to the scene of a motor vehicle accident in the vicinity of 1067 or 1069 Fordham Lane, in Woodmere. Officer Tosi arrived at that scene within approximately three to four minutes. Upon arriving at the accident scene Officer Tosi observed a white vehicle in the driveway of 1067 Fordham Lane leaning against the house, and observed a dark color SUV in a flower bed on the lawn of the adjacent property, 1069 Fordham Lane.

After exiting his patrol vehicle and beginning his investigation Officer Tosi observed tire marks on the lawn of 1067 Fordham Lane proceeding across a sidewalk and over a paved area, then continuing to where the SUV was stopped in a flower bed at 1069 Fordham Lane. Officer Tosi also observed damage to a telephone pole support wire, a walkway and the house at 1067 Fordham Lane, as well as the landscaping at 1069 Fordham Lane. Officer Tosi further observed damage to the right rear quarter panel and front end of the white vehicle which was abutting the premises at 1067 Fordham Lane.

The owner of the premises at 1069 Fordham Lane approached Officer Tosi and told him that the SUV drove up onto her property, damaged her flower bed and she lost power in her residence. Officer Tosi next encountered an individual who was identified as a passenger in the SUV. This individual advised Officer Tosi that the driver of the SUV was walking westbound on Fordham Lane. Officer Tosi then began walking in the direction indicated by the passenger.

After walking about twenty-five feet westbound on Fordham Lane, Officer Tosi observed the Defendant walking towards him. As the Defendant approached Officer Tosi he observed the Defendant to have watery eyes and the odor of an alcoholic beverage on his breath. Officer Tosi asked the Defendant if he was driving a vehicle; and, the Defendant stated that he did. Officer Tosi asked the Defendant where he was going; and, the Defendant stated that he was going to a friend's house. Officer Tosi asked the Defendant if he had anything to drink; and, the Defendant stated that he had one beer approximately five hours earlier. At this point Officer Tosi was of the opinion that the Defendant was intoxicated. He did not communicate this opinion to any of the other officers who had also arrived at the scene.

Officer Aigotti was one of the other officers who had received a radio assignment regarding this accident and who responded to the accident scene that night. She arrived at the scene shortly after midnight. When she arrived she observed that three corners of the house, and the support beam, of the house which had been struck, were compromised, and she observed severe front end damage to the SUV. Officer Aigotti also observed the Defendant standing on the sidewalk in the vicinity of 1069 Fordham Lane. Before approaching the Defendant Officer Aigotti spoke with another officer, whose identity she could not recall. Officer Aigotti then approached the Defendant to administer standardized field sobriety tests ("SFSTs"). When she first came into contact with the Defendant she observed him to have watery eyes and the odor of an alcoholic beverage on his breath. The officer asked the Defendant if he had any injuries, to which the Defendant responded, "No." Officer Aigotti then administered SFSTs. Three or four other officers were present at that time.

During the horizontal gaze nystagmus test Officer Aigotti observed the Defendant to display six out of six possible clues of intoxication. Officer Aigotti administered a vertical gaze nystagmus test which was positive for the presence of nystagmus, indicating an excessive [*3]amount of alcohol for the Defendant. During administration of the nine step walk and turn test Officer Aigotti observed the Defendant start the test too soon, stop walking, make an improper turn and stop counting. Upon administering the one leg stand test Officer Aigotti observed the Defendant hop and sway, exhibiting two out of a possible four clues of intoxication. Officer Aigotti also administered a preliminary breath test to the Defendant, resulting in a positive blood alcohol content reading of .10%. Officer Aigotti took notes while the SFSTs were being administered concerning, inter alia, her findings on the SFSTs, and gave those notes to Officer Tosi, the arresting officer.

CONCLUSIONS OF LAW

The Defendant argues that, pursuant to the "fellow officer rule," the information obtain by Officer Aigotti can only support a finding of probable cause to arrest where there is evidence that the arresting officer acted upon the direction of an officer with knowledge sufficient to establish probable cause, or the arresting officer acted as a result of communication with a fellow officer who had knowledge sufficient to establish probable cause. The Defendant argues that Officer Tosi does not fit into either one of those categories. In support of this position the Defendant points to People v. Powell, 101 AD3d 756, 758, 955 N.Y.S.2d 608, 610 (2nd Dept. 2012), wherein the court made the following observations:

Under the fellow-office rule, if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer acts upon the direction of or as a result of communication with a superior or fellow officer or another police department, provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest (citations omitted). Here, the People did not present evidence to establish that the officers who stopped and detained the defendant and his codefendant actually received any information from another officer who may have possessed probable cause. Although the People demonstrated that certain officers who interviewed an eyewitness had sufficient information to constitute probable cause, the People presented no evidence that those officer communicated that information to the arresting officers prior to the stop and detention of the defendant. The People also did not present any testimony from the arresting officers as to what information they possessed or how they received it before they detained the defendant and his codefendant.

People v. Mitchell, 185 AD2d 163, 164, 585 N.Y.S.2d 759761 (1st Dept. 1992), lv. granted 80 NY2d 912, 588 N.Y.S.2d 837(1992) app. dis. 81 NY2d 819, 595 N.Y.S.2d 390 (1993) applied same reasoning as in Powell, supra., noting: . while the police are permitted to rely on the direction of their fellow officers to arrest without simultaneously knowing the underlying facts which led to such direction, they cannot be considered to have relied on information possessed by each other without there having been any communication of either the information itself or a direction to arrest (citations omitted).

Similarly, in People v. Skinner, 220 AD2d 350, 351, 633 N.Y.S.2d 29, 30 (1st Dept. 1995) the court noted: While the police are permitted to rely on the direction of their fellow officers to make an arrest, they cannot be considered to have relied on information possessed by each other [*4]without the guidance of any communication of either the information itself or a direction to arrest having been imparted and received (citation omitted)."

In People v. Roc, 39 Misc 3d 687, 961 N.Y.S.2d 847, 853 (Sup. Ct. Queens Co. 2013), citing both Powell, supra. and Skinner, supra., the court granted the defendant's motion to dismiss, noting, "At the time he arrested the defendant, the arresting officer had not received information from a fellow officer who had information sufficient to support a reasonable belief that an offense was committed by this defendant."

In support of the propriety of the arrest, the People argue that the information possessed by both Officer Tosi and Officer Aigotti, who were working in close temporal and spatial proximity to one another, may, in combination, support a finding of probable cause to believe an offense was committed. In support of this position the People point to, among others, People v. Gittens, 211 AD2d 242, 245, 627 N.Y.S.2d 435, 438 (2nd Dept. 1995) lv den. 87 NY2d 846, 638 N.Y.S.2d 605 (1995), which noted:

When officers are working in close temporal and spatial proximity to one another, circumstances may provide one officer with grounds for a reasonable belief that a fellow officer or officers possess knowledge which, alone or in conjunction with the knowledge possessed by him, is sufficient to warrant some level of intrusive action. Under such circumstances, the aggregate knowledge possessed by the various officers may be considered when reviewing the propriety of the action taken (citations omitted).

This same reasoning prevailed in People v. Bouton, 50 NY2d 130, 135, 428 N.Y.S.2d 218, 220 (1980), wherein the court noted:

. it is the responsibility of the neutral court, not the police, to determine whether the latter were justified in making the serious intrusion that the deprivation of another's liberty constitutes. the officers who made the arrest need not personally have possessed reasonable grounds to believe the defendant had committed a crime; it could suffice that someone, somewhere in the investigative hierarchy did. One way or the other, however, it was incumbent upon the prosecution to point out the basis for this belief.

Likewise, in People v. Starr, 221 AD2d 488, 489, 634 N.Y.S.2d 132, 134 (2nd Dept. 1995), citing Gitten, supra., the court explicitly recognized "that this court has adopted a circumscribed version of the 'fellow officer' rule which permits the imputation of knowledge from one officer to another, among officers working in a joint assignment despite the lack of an express communication of information or direction to take action (citation omitted)."

In the matter sub judice the Assistant District Attorney handling this hearing could have, and should have, done a better job of establishing a timeline for the interaction between Officer Tosi and the Defendant, between Officer Aigotti and the Defendant, and between Officer Tosi and Officer Aigotti. There is absolutely no testimony in this record establishing the time of the Defendant's arrest, whether Officer Aigotti conducted SFSTs and PBT before or after the Defendant's arrest, or, more importantly, whether Officer Tosi was advised of the results of the SFSTs or PBT either before or after the Defendant's arrest. Even if the court were inclined to accept the People's legal argument, the People have simply failed to provide the answers to these very important questions. It is not for the court to attempt to fill in the gaps for the People. Under these circumstances the court will not consider the results of the SFSTs or the PBT or Officer [*5]Aigotti's observations of the Defendant in determining whether there was probable cause to arrest the Defendant.

Without Officer Aigotti's observations and the results of the tests she conducted, the court must determine whether or not there was probable cause to arrest the Defendant based upon Officer Tosi's observations alone. These observations consist of a significant accident scene, where the Defendant's vehicle mounted a sidewalk, damaged a utility pole support wire, struck a stationary vehicle sitting in the driveway of a private home, pushed that vehicle into a support beam of the residence which was damaged, continued onto the adjacent property, and landed in a flower bed, the Defendant's admission that he had been driving and had consumed a quantity of alcohol, the Defendant's watery eyes and the odor of an alcoholic beverage on the Defendant's breath. Relying on People v. Vandover, 20 NY3d 235, 958 N.Y.S.2d 83 (2012) the Defendant argues that these observations are insufficient to support a finding of probable cause to arrest the Defendant. The Defendant's reliance on Vandover, id., is misplaced.

In Vandover, id. the Justice Court of the Town of Hamptonburgh granted the defendant's motion to suppress, finding that the odor of an alcoholic beverage, an admission to having consumed alcoholic beverages six hours prior to arrest, glassy, bloodshot eyes and a fatigued demeanor to be insufficient to establish probable cause for impairment. The Appellate Term for the Ninth and Tenth Judicial Districts affirmed that order. See: People v. Vandover, 31 Misc 3d 131(A), 927 N.Y.S.2d 818 (App. Term 9th & 10th Jud. Dists. 2011) While the Court of Appeals affirmed the Appellate Term's decision, finding "support in the record for the Appellate Term's determination that the facts did not support probable cause to arrest defendant[,]" People v. Vandover, 20 NY3d 235, 237, 958 N.Y.S.2d 83, 84 (2012), the court further noted that the Appellate Term's "determination, based on a mixed question of law and fact, is beyond our further review." People v. Vandover, id. at 237, 958 N.Y.S.2d 83, 84 (2012) The Court of Appeals then explicitly closed its decision by noting, "Although different inferences may have been drawn from these facts, we are faced with affirmed findings of fact precluding further review by this Court (citation omitted)." People v. Vandover, id. at 239, 958 N.Y.S.2d 83, 85 (2012) Indeed, numerous cases have reached different inferences and conclusions.

One such case is the recent decision in People v. Maher, 52 Misc 3d 136(A), 41 N.Y.S.3d 720 (App. Term 9th & 10th Jud. Dists. 2016), which is quite similar to the matter before this court. In Maher, id., after discounting the results of SFSTs, the Justice Court of the Town of Riverhead granted suppression and dismissed the accusatory instruments charging, inter alia, driving while intoxicated, finding that an accident, the odor of an alcoholic beverage on the defendant's breath, possible alcohol in the vehicle, slurred speech, instability, and the defendant's admission to having consumed alcohol insufficient to establish probable cause. In reversing the Justice Court the Appellate Term recognized:

A person may be arrested for violating Vehicle and Traffic Law § 1192(1) if it is more probable than not that he or she exhibits 'actual[] impair[ment], to any extent, [of] the physical and mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver' (citation omitted). It is irrelevant that defendant was ultimately arrested and charged with common-law driving while intoxicated .

Like the case sub judice, the court went on to further note: the fact of an accident may be construed to circumstantially suggest diminished motor [*6]control or impaired driving judgement by reason of alcohol consumption, without regard to proof of fault (see People v. Padmore, 44 Misc 3d 129[A], 2014 NY Slip Op 50988[U], [App Term, 2d, 11th & 13th Jud Dists 2014] ['While the circumstances of the accident in this case may have been capable of innocent explanation they nonetheless supported an inference that a crime had been committed because the vehicle had been driven by a person under the influence of alcohol'], quoting People v. Booden, 69 NY2d 185, 188 [1987]; e.g. People v. Thomas, 68 AD3d 482, 483 [2009]; People v. Murray, 7 AD3d 828, 830 [2004]; People v. Cavanaugh, 264 AD2d 903, 904 [1999]; Villalobos v. County of Nassau, 15 Misc 3d 135[A], 2007 NY Slip Op 50751 [U], [App tem, 9th & 10th Jud Dists 20070. The testimony as to the accident, defendant's physical appearance and demeanor, her admissions as to recent alcoholic beverage consumption, and the presence in her vehicle of a Pepsi bottle containing a liquid that smelled like an alcoholic beverage, established a proper basis for defendant's arrest, at the very least, for driving while impaired (citations omitted).

Similarly related to the matter presently before this court, the Appellate Term recognized: Defendant argues that innocent explanations are available for each of the indicia of impairment/intoxication she exhibited at the arrest scene, relying heavily on the oft-repeated dictum in Carrasquillo that 'conduct equally compatible with guilt or innocence will not suffice' (54 NY2d at 254). However, compared to evidence of intoxication, the proof necessary for a conviction for driving while impaired, and necessarily, an arrest, therefor, is 'far less rigorous' (People v. Reding, 167 AD2d 716, 717 [1990]), and, in making the determination to arrest, an officer is not obligated to eliminate all possible innocent explanations for incriminating facts (citations omitted)

See also: People v. Tieman, 112 AD3d 975, 978 N.Y.S.2d 67 (2nd Dept. 2013) [observation of glassy eyes, slurred speech, the odor of an alcoholic beverage on the defendant's breath and erratic driving sufficient to establish probable cause to arrest for a violation of VTL § 1192]; People v. Sykes, 31 Misc 3d 126(A), 926 N.Y.S.2d 346 (App. Term 2nd, 11th & 13th Jud. Dists. 2011) [motor vehicle accident, admission to operation and alcohol consumption, watery, bloodshot eyes, slurred speech and the odor of an alcoholic beverage on the defendant's breath sufficient to sustain a conviction for driving while ability impaired beyond a reasonable doubt]; People v. Gingras, 22 Misc 3d 22, 871 N.Y.S.2d 812 (App Term 9th & 10th Jud. Dists. 2008) [observations of results of motor vehicle accident, open container of alcoholic beverage, admission to operation, slurred speech, bloodshot eyes and odor of an alcoholic beverage on the Defendant's breath "established probable cause for defendant's arrest, at the very least for driving while impaired in violation of Vehicle and Traffic Law § 1192(1), although defendant was not specifically so charged."]; People v. Lizzio, 178 AD2d 741, 577 N.Y.S.2d 178 (3rd Dept. 1991) [accident, bloodshot eyes, slurred speech, the odor of alcohol sufficient to support a guilty verdict on the charge of driving while ability impaired]; People v. Troche, 162 AD2d 483, 556 N.Y.S.2d 403 (2nd Dept. 1990) [erratic driving, bloodshot eyes, slurred speech and the odor of alcohol on the Defendant's breath provided probable cause for an arrest for driving while intoxicated]; People v. McCarthy, 135 AD2d 1113, 523 N.Y.S.2d 291 (4th Dept. 1987) [bloodshot eyes, slurred speech, odor of alcoholic beverage coming from vehicle provided probable cause to believe defendant was driving while ability impaired]; People v. Hilker, 133 [*7]AD2d 986, 521 N.Y.S.2d 136 (3rd Dept. 1987) [motor vehicle accident, odor of alcohol on the defendant's breath, defendant's admission to having consumed alcohol and beer containers found in the vehicle provided probable cause to arrest the defendant]; People v. Blajeski, 125 AD2d 582, 509 N.Y.S.2d 648 (2nd Dept. 1986) [bloodshot eyes, slurred speech, the odor of alcohol on the defendant's breath provided probable cause to arrest for a violation of VTL § 1192]

Based upon all of the foregoing, the court finds Officer Tosi's observations of the accident scene, along with the Defendant's physical condition and the Defendant's admission to having operated one of the vehicles involved in the motor vehicle accident and to having consumed alcohol, sufficient to establish probable cause to arrest the Defendant for a violation of Section 1192 of the Vehicle and Traffic Law.

The court further finds that the statements the Defendant made to Officer Tosi, prior to his arrest, were not the result of a custodial interrogation, but were part of a brief roadside accident investigation. The Defendant's statements were neither the product of a violation of the Defendant's Miranda rights nor any sort of coercion.

Finally, the court notes that the People previously served a notice pursuant to CPL § 710.30 disclosing the existence of statements about which no testimony was offered at the time of the hearing. Those statements shall be suppressed.

Accordingly, the Defendant's motion to suppress is granted to the limited extent of suppressing statements allegedly made to Officer Tosi at Central Testing Section at 1:40 a.m. and statements allegedly made to Sargent Steven Cates at the Detention Desk at 3:40 a.m., and is denied in all other respects.

This constitutes the decision and order of the court.

Dated: April 10, 2017

Hempstead, New York

___________________________

ANDREW M. ENGEL

J.D.C.