People v Anderson

[*1] People v Anderson 2006 NY Slip Op 52294(U) [13 Misc 3d 1242(A)] Decided on November 30, 2006 Justice Court Of Town Of Webster, Monroe County DiSalvo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2006
Justice Court of Town of Webster, Monroe County

The People of the State of New York

against

Robert J. Anderson, Defendant.



06060051



Appearances:

Faye Vitagliano, Assistant District Attorney

Thomas A. Corletta, Attorney for Defendant

Thomas J. DiSalvo, J.

On June 4, 2006 at 9:43 P.M. the defendant was stopped on Bay

Road in the Town of Webster by Officer David Herrle of the Webster Police Department, for

allegedly going 55 miles per hour in a 35 mile an hour zone.Upon an initial inquiry by the

officer, the defendant stated that he was headed home after a friend's fiftieth birthday party and

that he had consumed two to three beers at the Beale Street Pub. Upon observing various indicia

of intoxication, Officer Herrle asked the defendant to perform certain standardized roadside tests.

One of those tests was the horizontal gaze nystagmus (HGN) test. Based on these tests the

defendant was placed under arrest and transported to the Webster Police Department. The

defendant was eventually issued appearance tickets for Speeding, VTL 1180(d), Per se Driving

While Intoxicated, VTL 1192(2) and Common Law Driving While Intoxicated VTL 1192(3).

Defense counsel filed motions that were set down for argument on September 9, 2006.

As a result of said motions, Probable Cause and Huntley Hearings were conducted on October [*2]

27, 2006.After reviewing the evidence presented at said hearings, the court found that there was reasonable cause, as defined by C.P.L. 70.10(2), to stop the defendant and arrest him for the

offenses in question. The court denied defense counsel's motion to suppress the statements made

by the defendant to the arresting officer.

Upon completion of the hearing, the case was set down for a bench trial on January 12,

2007 at 9:00 A.M. However, the court reserved on defense counsel's motion in limine to exclude

the use of the horizontal gaze nystagmus (HGN) test at trial.[FN1] The basis for said motion was that

a Frye Hearing has not been held in accordance with the case of Frye v. United States, (1923)

293 F. 1013.

Issues Presented

Has the scientific reliability of the HGN test been established?

Can the HGN test be admitted at trial without a Frye Hearing having first been

conducted?

Legal Analysis

A. Scientific Reliability. This court previously ruled in People v. Lansdowne (2004)

800 NYS2d 353, 2004 {6 Misc 3d 1002(A)} W.L. 3029871 (NY Just. Ct.), 2004 NY Slip Op. 51703(U) that the

results of the Horizotal Gaze Nystagmus test (HGN test) was not admissible unless the scientific

reliability of the test had been established at a prior Frye Hearing.That ruling was based on

established case law that continues to be valid as of the date of this decision. "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 NYS2d 656, 658

(3d Dep't 1995), and (b) that a trial Court commits error in allowing testimony [*3]concerning the HGN field sobriety test without a proper foundation as to its scientific acceptance or reliability.' 214 AD2d at 769, 624 NYS2d at 658.

See also People v. Erickson, 156 AD2d 760, 762-63, 549 NYS2d 182, 184

(3d Dep't 1989). Handling the DWI Case in New York, (2006-2007 Edition) at

Pages 143-144.

It should be noted that the Appellate Division, Third Department, indicated that the issue

of the general acceptance of the HGN's reliability was an accepted fact. The court stated in

support of the idea that a Frye hearing is not required that

"...subsequent decisions predating the trial in this case in which Frye hearings

were held have determined that HGN tests are generally accepted with the

scientific community as reliable indicator of intoxication (see People v.

Vanderlofske, 186 Misc 2d 182, 717 N.Y.S2d 450; People v. Prue, 2001

NY Slip Op. 40594[U], 2001 WL 1729710 [and cases cited therein])."

Thus, if defendant had raised the issue at trial, County Court could have

declined to hold a Frye hearing and take judicial notice of the reliability

of the HGN procedure and could have, instead, conducted only a foundational

inquiry into whether the accepted techniques were actually employed in

this case and the tester's qualifications ...." People v. Gallup, (2003) 302

AD2d 681, 684, 755 NYS2d 498, 501.

[See also People v. Prue, (3rd Dept. 2004) 8 AD3d 894, 779 NYS2d 271, 2004 NY Slip Op.

05492, where the court merely restates its findings in Gallup.] However, said discussion by the

court in the Gallup decision was only dicta and thus not binding on this court.[FN2] Despite the fact

that various lower courts in the Third Department have concluded that the HGN test is reliable,

(See for example People v. Prue (2001) WL 1729710 (N.Y.Co.Ct.), 2001 NY Slip Op.

40594(U)) no definitive appellate decision establishing the reliability of the HGN test has been

forthcoming. Certainly the Fourth Department of the Appellate Division has not determined that [*4]

the HGN test is reliable. In addition, the Fourth Department has continued to uphold the

standard established by Frye vs. United States, (1923) 293 F. 1013. In People v. Wooten, (4th

Dept. 2001) 283 AD2d 931, 932, 725 NYS2d 767,669-770, 2001 NY Slip Op. 03740, which involved the use of a "lumi-lite" in the investigation by the police of a rape and murder, the court

stated in upholding the trial court's denial of the defendant's motion for a Frye hearing, that "In

New York a Frye hearing is required only with respect to novel scientific evidence requiring a

determination as to its reliability' (People v. Wesley ... 611 NYS2d 97, 633 NE2d 451 {83 NY2d 417} )."

This, of course, begs the question as what constitutes a novel scientific test. Whether the HGN

test is a novel test, as defined in New York State law, is an issue that the appellate courts and

possibly the legislature need to address.

Nevertheless, there is no doubt that the test has scientific validity, depending on how it is

used. The National Highway Traffic Safety Administration under the United States Department

of Transportation recognizes the use of this standard field sobriety test in its Standard Field

Sobriety Testing Student Manual (The "NHTSA MANUAL"). Handling the DWI Case In New

York (2006-2007 Edition) at page 139.The problem is that the test does not definitively and

exclusively indicate alcohol consumption. In other words, the nystagmus observed in an

individuals eyes may be the result of a number other causes.[FN3] [*5]

" It has been judicially noted that nystagmus may also indicate a number of neurological problems, the presence of which would affect the accuracy of any HGN-based estimate of blood alcohol content. Nystagmus may be congenital or due to several conditions affecting the brain, such as, in addition to the ingestion of alcohol or barbituates, palsy of lateral or vertical gaze, and disorders of the vestibular apparatus and brainstem and

cerebellar dysfunction". 60 ALR4th 1129, 1123.

As a result, the HGN test may prove to be more useful in determining "reasonable cause" to

arrest (C.P.L. 70.10(2)) an individual for driving while intoxicated. In that vein it would appear

no Frye hearing would be necessary if the test was used for that limited purpose, since the Court



in a Probable Cause hearing would use the results of the test in the same manner as it would the

results of an alcosensor test. "The alcosensor has been held to be sufficiently reliable for use in

determining the presence of alcohol and to be a factor, for example, in a determination as to

whether a police officer has probable cause to arrest an individual for Driving While Intoxicated"

People v. Jones, (NY Co. Ct., 2005) 10 Misc 3d 413, 416, 805 NYS2d 807, 2005 N.Y.Slip

Op. 25427. Despite the fact that the alcosensor is based on sound science, "the case law

generally is that evidence of an alcosenor test is not admissible at trial". Supra at 416.

However, the long standing and extensive use of alcosensors would seem to prohibit such a

device as being considered "novel".

B. Use of the HGN test at Trial without a Frye Hearing.As previously indicated, the [*6]

reliability of the HGN test to conclusively indicate whether or not a defendant's performance of

said test is based on that person's consumption of alcohol has not been definitively established by

legislation or case law A conviction for driving while intoxicated can have long standing and

devastating consequences to one's personal and even professional life. Use of scientific tests

should not be used by the trier of fact, whether judge or jury, at trial if there results can be

attributed to circumstances other than the issue at hand.Unless and until the HGN test is

recognized by the courts and/or legislature as being generally accepted in the scientific

community as a reliable indicator of intoxication and that other causes of the nystagmus can be

excluded, a Frye hearing, establishing said reliability, would still be required before a trial court

could admit testimony concerning the HGN test into evidence. "In New York, after the Supreme

Court's opinion in Daubert, [Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 113 S.Ct

2786, 125 L. Ed. 2d 469] the stricter general acceptance' test of Frye v. United States, 293 F.

1013 [1923] had continued to be applied in cases where the issue was the reliability and

admissibility of novel scientific evidence .... Where, however, the evidence is not scientific or not

novel, the Frye analysis is not applicable." Wahl v. American Honda Motor Co., (NY Sup.

1999) 181 Misc 2d 396, 398, 693 NYS2d 875, 877, 1999 NY Slip Op.99368.

Conclusion.

The defendant's motion in limine to exclude the Horizontal Gaze Nystagmus (HGN) test

at trial is hereby granted, subject to the results of a Frye hearing.This matter is returned to

the disposition calender on December 20, 2006 at 1:00 P.M. to determine if the People wish to

schedule a Frye hearing prior to the trial in this matter. This constitutes the Decision and Order

of the court. [*7]

Dated: Webster, New York

November 30, 2006

E N T E R ,

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1: Based on the totality of the evidence submitted, the exclusion of the HGN test at the Probable Cause Hearing would not have changed the result.

Footnote 2: "Legal principals established by higher courts are binding on lower courts (People v.

Hobson, 39 N.Y2d 479, 491). However, statements not necessary for a court's determination of the case, dicta, although carrying considerable weight, is not stare decisis and need not be followed by lower courts...." People v. Morgan, 2001 WL 940234 at page 7 (NY Sup., Kings Co.), 2001 N.Y.Slip Op.40090(U).

Footnote 3: As quoted in Peter Gertenzang's book Handling the DWI Case in New York (2006-2007) at page 139 the NHTSA Manual "... defines nystagmus' as follows:

Nystagmus is the involuntary jerking of the eyes, occurring as the eyes gaze

toward the side. Also, nystagmus is [a] natural, normal phenomenon. Alcohol

and certain other drugs do not cause this phenomenon, they merely exaggerate

or magnify it.' [Emphasis added.]

The manual is further quoted as follows:

Horizontal Gaze Nystagmus occurs as the eyes move to the side. It is the

observation of the eyes for horizontal gaze nystagmus that provides the

first and most valid test in the standardized field sobriety test battery.

Although this type of nystagmus is most accurate for determining alcohol

influence, its presence may also indicate use of PCP, certain inhalants and

other central nervous system depressants. Supra at 139.