People v Pinkhasov

[*1] People v Pinkhasov 2008 NY Slip Op 52316(U) [21 Misc 3d 1132(A)] Decided on November 19, 2008 District Court Of Nassau County, First District Spergel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2008
District Court of Nassau County, First District

The People of the State of New York, Plaintiff,

against

Radik Pinkhasov, Defendant.



2007/28786



Hon. Kathleen Rice, District Attorney Nassau County

Hession, Bekoff & Cooper, LLP, for Defendant

Robert H. Spergel, J.

On November 17, 2007, defendant, Radik Pinkhasov, was charged with violating one count of Section 1192.2 of the New York State Vehicle and Traffic law (Driving While Intoxicated), a misdemeanor, and one count of Section 1192.2(a) of the New York State Vehicle and Traffic law (Aggravated Driving While Intoxicated), also a misdemeanor .

A pre-trial hearing was ordered to determine defendant's motion to suppress. On October 16, 2008 a Huntley/Dunaway/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant.

The People produced Police Officer Robert Germani, the arresting officer, as a witness to testify. Officer Germani is a member of the Nassau County Police Department. The defendant did not call any witnesses. Based upon the credible evidence advanced at the hearing, the Court concludes the following:

FINDINGS OF FACT

On November 17, 2007 Police Officer Germani was working the 7P.M. X 5A.M. tour of duty. He was in a marked police vehicle, in uniform and working alone. At approximately 12:15 A.M. Officer Germani received a radio call of a motor vehicle accident in the vicinity of 100 East Shore Road in Great Neck. Upon his arrival Officer Germani observed a vehicle with extensive front end damage in the middle to left lane of traffic on the [*2]northbound side. The defendant was standing directly next to the vehicle. Officer Germani asked defendant where he was coming from and defendant replied he was "coming back from school to visit his girlfriend."

Officer Germani was informed by Officer Sean Maass, the assisting Officer, that defendant was the driver of the vehicle involved in the accident. Officer Germani testified that Officer Maass had received this information from an eyewitness, however, Officer Germani could not identify the eyewitness.

In furtherance of his investigation, Officer Germani observed the defendant to have slurred speech, an odor of alcohol and glassy, bloodshot eyes. Officer Germani proceeded to observe the defendant perform Standard Field Sobriety tests administered by Officer Maass. The Field Sobriety Tests were performed on the side of the road, at night. Officer Germani testified that there was sufficient light to perform the tests. After defendant's performance on the Field Sobriety Tests, defendant was placed under arrest.

CONCLUSIONS OF LAW

The Mapp/Dunaway Hearing:

The Court finds that Officer Germani lawfully approached defendant after receiving a radio call of a motor vehicle accident. Upon his arrival to the location of the accident, Officer Germani observed defendant standing outside a motor vehicle. This motor vehicle was in the roadway and had extensive front end damage. Officer Germani, as part of his initial investigation engaged defendant in conversation whereby defendant stated he was "coming back from school to visit his girlfriend." Officer Germani observed defendant to have slurred speech, an odor of alcohol and glassy, bloodshot eyes. Based upon his observations and experience concerning indications of alcohol, Officer Germani observed Officer Maass administer Field Sobriety Tests. The results of the Field Sobriety Tests showed indicia of intoxication.

Notwithstanding the fact that Officer Germani had no personal knowledge of defendant's operation of the motor vehicle, he had received [*3]information concerning defendant's operation of the vehicle from Officer Maass. The "Fellow Officer Rule" authorizes a receiving Officer to assume that the information provided by the sending Police Officer is reliable and accurate.

The "Fellow Officer Rule" is not however without its limitations.Although hearsay is admissible in pre-trial suppression hearings, when a "receiving officer" accepts information from a "sending officer," the acceptance of the information must be based upon the personal knowledge of the "sending officer." When the information of the "sending officer" is not based upon personal knowledge, but rather based upon the knowledge of a civilian witness, this information must be shown to be both credible and reliable. (People v. Parris 83 NY2d 342 (1994)). In Parris, the Court adopted the two prong analysis concerning the reliability of eyewitnesses in establishing probable cause for a warrantless arrest.

The Criminal Procedure Law utilizes the phrase "reasonable cause" instead of "probable cause" CPL 70.10(2). As it has emerged through case law, the probable cause, or, reasonable cause to arrest an individual has become more of a standard of common sense.

Citing CPL 70.10(2), the book Handling the DWI Case In New York (2004-05), by Peter Gerstenzang and Eric H. Silla, at page 38 states the following:

"Reasonable cause to believe that a person has committed an

offense exists when evidence or information which appears reliablediscloses facts or circumstances which are collectively of such

weight and persuasiveness as to convince a person of ordinaryintelligence, judgment and experience that it is reasonably likely thatsuch offense was committed and that such person committed it.

Except as otherwise provided in this chapter, such apparentlyreliable evidence may include or consist of hearsay."

The Court of Appeals in People v. Carrasquillo, 54 NY2d 248, 252, 445 N.Y.S.2d 97, 100 (1981), stated that:

"In passing on whether there was probable cause for an arrest, weconsistently have [*4]made it plain that the basis for such a belief mustnot only be reasonable, but it must appear to be at least moreprobable than not that a crime has taken place and that the onearrested is its perpetrator, for conduct equally compatible with guilt orinnocence will not suffice."

In People v. Farrell, 89 AD2d 987, 454 NYS2d 306 (1982), the Second Department, applied this "common sense" standard for making an arrest in drinking and driving cases.

"[W]hether, viewing the facts and circumstances as they appeared atthe time of the arrest, a reasonable person in the position of theofficer could have concluded that the motorist had operated thevehicle while under the influence of intoxicating liquor."

Turning to the instant matter, Officer Germani is an experienced Police Officer. Drawing upon his experiences, both personal and professional, Officer Germani observed that defendant was standing directly next to a vehicle with extensive front end damage from an accident and that the vehicle was still in the roadway. Moreover, defendant stated to Officer Germani that he was "coming back from school to visit his girlfriend." Further observations by Officer Germani showed defendant to have slurred speech, an odor of alcohol and glassy, bloodshot eyes. Officer Germani also observed defendant perform Field Sobriety Tests.

Notwithstanding Officer Germani having no personal knowledge of defendants operation of the vehicle, for all the reasons stated herein, the Court concludes that considering the totality of the evidence presented,

Officer Germani had probable cause to place defendant under arrest for Driving While Intoxicated. People v. Rollins, 118 AD2d 949, 499 NYS2d 817 (3d Dept. 1986).

The Huntley Hearing:

At the conclusion of testimony, it is clear that the statements were spontaneously made in response to legitimate preliminary and pre-custodial inquiries which were investigatory in nature. Thus, the statements at issue contained in the 710.30 notice will be admissible at trial.

So Ordered:

_________/S/_______________

ROBERT H. SPERGEL, D.C.J. [*5]

Dated: November 19, 2008

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