People v Pietrocarlo
Annotate this CaseDecided on December 4, 2008
City Court of Jamestown
The People of the State of New York, Plaintiff,
against
Danielle Pietrocarlo, Defendant.
2008-56449
David W. Foley, Esq., District Attorney
Lynn S. Hodgens, Esq., of counsel
Mayville, New York
For the People
William R. Coughlin, Esq., Public Defender
Philip A. Cala, Esq., of counsel
Jamestown, New York
For the Defendant
John L. LaMancuso, J.
Defendant is charged with operating a motor vehicle while having .08 of one per
centum or more by weight of alcohol in her blood (Vehicle and Traffic Law § 1192 [2]) and
operating a motor vehicle while in an intoxicated condition (Vehicle and Traffic Law §
1192 [3]).
On October 17, 2008, the Court held a Probable Cause/Dunaway hearing. As
a matter of judicial economy, this Court extended great latitude to both parties to fully explore
the operation issue, despite the fact that, in doing so, the testimony exceeded the normal bounds
of an Ingle/Dunaway hearing. In essence, the hearing amounted to a non-jury trial
devoted to the issue of operation.
Defendant contends that there is a lack of prima facie proof of operation in
that there is no evidence of an intent to operate the vehicle. The People respond that because
defendant was found sitting behind the wheel of a parked car, with the keys in the ignition and
the engine running, operation is presumed as a matter of law.
After weighing the credible evidence adduced at the hearing, the Court makes the
following findings of fact and conclusions of law:
Findings of Fact
On cold and snowy January 19, 2008, defendant was employed as a bartender at Mojo's, a local tavern. Defendant worked from 9:30 p.m. on the 19th until 2:00 a.m. on the morning of the 20th. She had nothing of an alcoholic nature to drink before leaving work shortly after 2:00 a.m. [*2]
After leaving work, she drove to a party at a house on Fairfax Street off of Willow Avenue in the City of Jamestown and, with the aid of her cell phone, tried to reach her boyfriend for information on how to get to the party. While calling her boyfriend, her cell phone died repeatedly. Nevertheless, with the help of GPS, she finally arrived at the location but parked on the wrong road (Willow instead of Fairfax) and, in what ultimately turned out to be her undoing, parked on the wrong side of Willow (the side that was supposed to remain clear for the snowplow). She arrived at the house on Fairfax around 2:30 p.m. and stayed a couple of hours, admittedly consuming alcohol. Her best friend, Megan Carlson, and her boyfriend, Thomas Lovvorn, were also at the party and had arrived separately.
When it came time to leave between 4:00 to 4:30 a.m. and realizing that she was intoxicated, she made arrangements with a designated driver ("DD") for a ride home. It was at this point that her plans went awry. She remembers telling her boyfriend that she was going out to her car to charge her cell phone. A group of six or seven people were leaving at once in three cars. The three cars were all parked on Fairfax (while defendant was parked on Willow). When defendant got to her car, she put the keys in the ignition and started the engine but did not put the car in gear. Her reasons for starting the car were twofold: heat (she was wearing just a short-sleeved shirt) and to charge her phone (which would not happen in her car without the engine running). Mr. Lovvorn, who was getting a ride with the DD as well, went back to the house to look for defendant. When he found that she was not there, he assumed that she had already left with the rest of the cars and left without defendant.
To the contrary, defendant was sitting in a substantially reclined position in her vehicle waiting for the cell phone to charge. The heat was running and she fell asleep. It was roughly 4:30 a.m.
At about 5:45 a.m., Officer Russell had a call about a car hindering snow removal on Willow Street and promptly drove to that location. Upon arriving, he found defendant slumped back in the driver's seat, with the engine running and loud music blaring from the inside of her vehicle. He found defendant to be unresponsive and proceeded to tap on the window to get her attention. Defendant "woke up and acted rather startled" in the words of Officer Russell. He asked defendant a series of questions. In response to "without looking what time is it," she said "2:45 in the morning." In response to "were you operating this vehicle," she answered "yes." When asked what she was doing, she stated that she had dropped friends off.
No lights could be seen or noise could be heard coming from any of the surrounding houses, and defendant was alone. She had no passengers with her.
Officer Russell inventoried defendant's property after her arrest, and noted a lady's purse on the prisoner property record, but made no notations as to a cell phone. Based upon the credible evidence, and notwithstanding the absence of a more specific notation, the Court finds that the cell phone was in the purse when the officers took possession of it.
The vehicle's transmission was in park. Neither officer observed any tire tracks in the snow.
Analysis
Where physical evidence is sought to be suppressed, the general rule is that the People must go forward with evidence tending to demonstrate a lawful rationale for the police conduct (People v. De Frain, 204 AD2d 1002 [4th Dept 1994], lv. den., 84 NY2d 825 [1994]). Given the [*3]fact that defendant's vehicle was not moving - that she was parked when the police arrived on the scene, the Debour [FN1] threshold - the level of justification - is low. Police need only an objective, credible reason (level one) to approach a parked car (People v. Ocasio, 85 NY2d 982 [1995]).
On the other hand, it is fairly obvious that the parties approached the hearing as if it were a non-jury trial confined to the issue of operation. Accordingly, the Court will abandon any purist approach in favor of a more pragmatic solution, that being, to apply the trial burden of proof to the matter that was at issue in the hearing, to wit: operation.
Operation is an element in any alcohol related, driving offense prosecution. "A person operates a motor vehicle within the meaning of [the statute] when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle" (People v. Alamo, 34 NY2d 453, 459 [1974] [internal quotations and internal citations omitted]).
The Criminal Jury Instructions provide that "[t]o 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" (CJI2d[NY] Driving While Intoxicated [rev January, 2008] [emphasis added]). In other words, when a defendant is not seen driving the car, i.e., the car is not moving, there must be proof both that the engine was running and that defendant was sitting behind the wheel with the purpose of placing the vehicle in motion.
The credible evidence suggests that, after the party, defendant returned to her car for the purpose of charging her cell phone and after turning on the engine at 4:30 in the morning and while intoxicated, simply fell asleep. The vehicle at all times remained in park. The seat was reclined, in defendant's words, "pretty far back" such that defendant was not capable of driving the vehicle. Furthermore, defendant's 710.30 admission of operation, while, of course, relevant, was lacking in any sort of temporal benchmark, making it far from persuasive as to the purpose issue.
Based upon the foregoing, the simplified traffic informations are dismissed for lack of sufficient proof of operation. The foregoing constitutes the decision and order of the court.
Dated this 4th day of December 2008
___________________________________
Hon. John L. LaMancuso
City Court Judge
Footnotes
Footnote 1: People v. De Bour, 40
NY2d 210 (1976).
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