People v Leone

[*1] People v Leone 2010 NY Slip Op 50866(U) [27 Misc 3d 1224(A)] Decided on May 17, 2010 Nassau Dist Ct, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2010
Nassau Dist Ct, First District

The People of the State of New York,

against

Jeffrey Leone, Defendant.



2008NA004093



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Paul Delle, Esq.

Andrew M. Engel, J.

The Defendant is charged with driving while intoxicated and operating a vehicle with sub-standard tires in violation of VTL §§ 1192(2) and 375(35)(c), respectively.

On February 9, 2010, upon the parties' consent, the court conducted a Mapp/Dunaway/Huntley[FN1] hearing. At such a hearing, where a defendant challenges the legality of a search and seizure, 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 NYS2d 65 (1965); People v. Wise, 46 NY2d 321, 413 NYS2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 NYS2d 441 (1984); People v. Moses, 32 AD3d 866, 823 NYS2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 NYS2d 696 (2006) Once the prosecution has met this 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 NYS2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 NYS2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 NYS2d 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 NYS2d 838 (1965); People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977).

The People attempt to meet their burden through the testimony of Police Officer Daniel Heffernan. The Defendant did not call any witnesses. After listening to and observing the demeanor of Officer Heffernan, the court finds his testimony to be credible and makes the following findings of fact:

On February 12, 2008, at approximately 2:20 a.m. Officer Heffernan was alone, on patrol in Rockville Centre in a marked police vehicle, when he received a radio call concerning a dispute with a knife behind Casey's Bar at 23 North Park, located in Municipal Parking Field [*2]Number 1, in Rockville Centre. The radio call provided a description of a bald male with a knife operating a black Cadillac, with a second male in the vehicle, driving away from the scene.

Officer Heffernan, who had been in an adjacent parking filed when he received the radio call, entered Municipal Parking Field Number 1 from Morris Avenue and observed a black Cadillac heading toward him in an eastbound direction at about twenty miles per hour. This observation was made approximately thirty seconds after receiving the radio call. At that time Officer Heffernan also observed a bald male, who he identified as the Defendant, operating the Cadillac, and a second male in the vehicle as well. Immediately upon making these observations, Officer Heffernan saw the Cadillac, which was approximately fifty to seventy five feet away, stop and then back into a parking spot. There were no other vehicles in the area.

After exiting his vehicle Officer Heffernan approached the Cadillac, the motor for which was still running, and asked the passenger in the Cadillac to exit the vehicle. Officer Vega, who had responded to the scene along with other officers, asked the Defendant to exit the vehicle. The officers did so because the Defendant matched the description of the call for a male with a knife. The two occupants exited the vehicle and almost immediately the Defendant became argumentative and belligerent. For their own safety, the officers patted down the Defendant and his passenger for weapons. Neither the Defendant nor the passenger were under arrest at this time. The Defendant continued to turning around, yell at the officers and refuse to cooperate with the officers' demands, so he was placed in handcuffs for the officers' protection.

At this same time, Officer Heffernan observed the Defendant to have glassy eyes, slurred speech, to be unsteady on his feet and to have the strong smell of alcohol on his breath. Officer Heffernan, without Mirandizing[FN2] the Defendant, asked him where he was that night, if he had an argument with someone else, where he came from and if he had been drinking. In response the Defendant indicated that he had three or four beers. This statement was made at approximately 2:32 a.m. Officer Heffernan then placed the Defendant under arrest for driving while intoxicated and for a vehicle and traffic offense.

Later that morning, at approximately 5:35 a.m, while Officer Heffernan was processing his paperwork, and entering information into a computer, in front of the Defendant, who was sitting about four feet away, Officer Heffernan asked the Defendant for pedigree information, including his name, address, and nearest relative. At that time the Defendant stated to Officer Heffernan, "I will admit I put the keys in the ignition and drove my vehicle." The statement was not made in response to any question asked by Officer Heffernan; nor was the Defendant made any promises or threatened before making this statement. Officer Heffernan continued to do his paperwork and continued to ask the Defendant for pedigree information, including where he went to school. At this time the Defendant stated, "I drove thirty feet and I backed my vehicle into a stall." This statement too was not made in response to any question asked by Officer Heffernan; nor was the Defendant made any promises or threatened before making this statement.

The Defendant argues that the radio call concerning a disturbance involving a man with a knife did not indicate that a crime was, or was about to be, committed. Based thereon, the Defendant suggests that probable cause was lacking and that the police were not justified in [*3]ordering the Defendant to exit his vehicle, frisking him and handcuffing him. The Defendant further argues that all evidence of the Defendant's alleged driving while intoxicated must be suppressed as the product of an unconstitutional detention. According to the Defendant, once the police concluded their investigation into the radio call concerning a disturbance by a man with a knife, notwithstanding Officer Heffernan's observations of the Defendant's possible intoxication, they had no right to detain and question the Defendant concerning same. Additionally, the Defendant argues that once he was handcuffed he was in custody and any interrogation of him should have been preceded by Miranda warnings, the absence of which requires the suppression of his statement concerning his consumption of three to four beers.

In opposition the People argue that the police had reasonable suspicion to stop the Defendant's vehicle based upon the radio call of a disturbance involving a bald male with a knife driving a black Cadillac. The People further argue that the Defendant was properly handcuffed, due to his belligerent and argumentative demeanor, and that the questioning of him which followed was merely investigative, designed to "clarify the situation," obviating the need for Miranda warnings. The People also argue that the Defendant's arrest for driving while intoxicated was supported by probable cause and that his post arrest statements were voluntarily and spontaneously made.

Not all police stops are prohibited; nor do they all require the presence of probable cause. "We must always hold in mind that it is only unreasonable searches and seizures from which the individual is protected under the Federal and State Constitutions (U.S. Const. 14th and 15th amdts.; NY Const. Art. I, § 12)." People v. David L., 81 AD2d 893, 895, 439 NYS2d 152, 154 (2nd Dept.1981), [Hopkins, J.P. and Weinstein, J. dissenting] revd. on dissenting mem. below, 56 NY2d 698, 451 NYS2d 722 (1982) cert. den. 459 U.S. 866, 103 S. Ct. 146 (1982) "Simply stated the proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual." People v. Stewart, 41 NY2d 65, 66, 390 NYS2d 870, 871 (1976); See also: Matter of Oniel W., 146 AD2d 633, 536 NYS2d 538 (2nd Dept.1989) In making this analysis, the court "must weigh the degree of intrusion entailed against the precipitating and attending circumstances" People v. Salaman, 71 NY2d 869, 870, 527 NYS2d 750, 751 (1988), "concentrat[ing] on whether the conduct of the police was reasonable at the time in view of the totality of the circumstances (citations omitted), for reasonableness is the touchstone by which police-citizen encounters are measured (citations omitted)." People v. Lomiller, 30 AD3d 276, 277, 818 NYS2d 27, 28 (1st Dept. 2006); See also: People v. Molnar, 98 NY2d 328, 746 NYS2d 643 (2002)

In judging the reasonableness of the police conduct in the matter sub judice, we begin with the understanding that this case does not involve a police stop of a moving vehicle. As in People v. Harrison, 57 NY2d 470, 475, 457 NYS2d 199, 202 (1982), "[h]ere the defendant[] had voluntarily stopped the vehicle and parked it before the police approached." See also: People v. Liverpool, 160 AD2d 894, 554 NYS2d 326 N.Y.A.D. 2 Dept.,1990 lv. den. 76 NY2d 791, 559 NYS2d 996 (1990); People v. Elsberry, 157 AD2d 848, 550 NYS2d 426 (2nd Dept.1990) Under such circumstances, contrary to the Defendant's argument, the police did not need to have probable cause for the actions they took between their initial approach of the Defendant's vehicle and his arrest for driving while intoxicated. As recognized in People v. Rosario, 94 AD2d 329, [*4]331, 465 NYS2d 211, 213 (2nd Dept.1983)

It is beyond cavil that the presence of probable cause is not a necessary element for all encounters between police and the citizenry during investigations of criminal activity (citation omitted). It is well settled that under appropriate circumstances, the police may briefly detain and question a person in a public place on information that does not rise to the level of probable cause, for, until an actual arrest occurs, the Constitution demands only that the action of the police be justified at its inception and reasonably related in scope and intensity to the circumstances surrounding the encounter' (People v. Finlayson, 76 AD2d 670, 674 cert den 450 U.S. 931; People v. Cantor, 36 NY2d 106, 111; Terry v. Ohio, 392 U.S. 1,20)."

In People v. De Bour, 40 NY2d 210, 386 NYS2d 375 (1976), "the Court of Appeals set out a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity." People v. Kettreles, 62 AD3d 902, 909, 879 NYS2d 208, 214 (2nd Dept. 2009) See also: People v. McIntosh, 96 NY2d 521, 730 NYS2d 265 (2001) As reiterated in People v. Hollman, 79 NY2d 181, 184, 581 NYS2d 619, 620 (1992):

If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion' (People v. De Bour, supra ., at 223, 386 NYS2d 375, 352 NE2d 562). Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.

At a minimum, "[s]ince the defendant had already stopped his car without any compulsion by the police, the officers needed only an articulable reason to make a reasonable inquiry (citations omitted)." People v. Fabian, 178 AD2d 544, 577 NYS2d 643 (2nd Dept.1991) lv. den. 79 NY2d 919, 582 NYS2d 79 (1992); People v. Blajeski, 125 AD2d 582, 509 NYS2d 648 (2nd Dept. 1986) Beyond that, "it has been consistently held that, where an officer entertains a reasonable suspicion concerning an individual, it is reasonable, and therefore constitutional, for him to stop and briefly detain that individual for questioning (People v. Skinner, 48 NY2d 889; 57 AD2d 579)." People v. Rosario, supra . at 331, 465 NYS2d 211, 214 (2nd Dept.1983) "Reasonable suspicion" is recognized as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand" People v. Cantor, 36 NY2d 106, 112, 365 NYS2d 509, 516 (1975); See also: People v. Martinez, 80 NY2d 444, 591 NYS2d 823 (1992); People v. Woods, 98 NY2d 627, 745 NYS2d 759 (2002)

In the matter before this court, immediately prior to approaching the Defendant's vehicle Officer Heffernan had received a radio call alerting him to a disturbance at a specific location involving a bald man with a knife who was leaving the scene in a black Cadillac. Based on these facts Officer Heffernan was "justified in entertaining, at the very least, a reasonable suspicion of criminal activity (citations omitted)." People v. Grimsley, 156 AD2d 714, 549 NYS2d 467 (2nd Dept.1989) lv. den. 75 NY2d 919, 555 NYS2d 38 (1990) [within two minutes of receiving a [*5]radio run of a purse snatching the officers stopped a man who fit the description broadcast in the radio run]

"Under the fellow officer' rule, [a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability.' (People v. Lypka, 36 NY2d 210, 213, 366 NYS2d 622, 326 NE2d 294.)" People v. Rosario, 78 NY2d 583, 588, 578 NYS2d 454, 456 (1991) Relying thereon, along with his subsequent observations of the Defendant in the vicinity of the alleged disturbance, matching the description of the of the perpetrator, Officer Heffernan had reasonable suspicion to believe that the Defendant had committed a criminal act. See: People v. Scott, 237 AD2d 543, 656 NYS2d 892 (2nd Dept.1997); People v. Holland, 4 AD3d 375, 770 NYS2d 872 (2nd Dept. 2004); People v. Sharpe, 259 AD2d 639, 687 NYS2d 652 (2nd Dept.1999)

While a defendant may challenge the reliability of the radio call, requiring the People to demonstrate that the officer broadcasting the radio call had reasonable suspicion, People v. Lypka, 36 NY2d 210, 366 NYS2d 622 (1975); People v. Havelka, 45 NY2d 636, 412 NYS2d 345 (1978), where a defendant fails to challenge the reliability of the radio transmission, as opposed to challenging the sufficiency of the content of that transmission, the reliability will be presumed, People v. Jenkins, 47 NY2d 722, 417 NYS2d 57 (1979); People v. Bowdoin, 89 AD2d 986, 454 NYS2d 149 (2nd Dept. 1982) and "the sender's knowledge is imputed to the receiver[.]" People v. McCloud, 182 AD2d 835, 837, 583 NYS2d 15, 17 (2nd Dept.1992); See also: People v. Serrano, 231 AD2d 748, 647 NYS2d 546 (2nd Dept.1996)

While challenging the sufficiency of the contents of the radio call received by Officer Heffernan to establish the existence of reasonable suspicion, the Defendant never challenged the reliability of the transmission, either before or during the hearing. See: People v. Weston, 56 NY2d 844, 453 NYS2d 167 (1982) The Defendant's "peripheral reference" in his post-hearing Memorandum of Law, to the effect that "There was no testimony as to the basis of this radio transmission or any description of any criminal activity[,]" was insufficient. See: People v. Fenner, 61 NY2d 971, 475 NYS2d 276 (1984); People v. Grier, 118 AD2d 727, 500 NYS2d 138 (2nd Dept.1986)

Having reasonable suspicion, Officer Heffernan's approach and detention of the Defendant "may be accompanied, as a protective measure, by the opening of any doors and a directive from the police to exit the car (citations omitted)." People v. Rosario, 94 AD2d 329, 331, 465 NYS2d 211, 213 (2nd Dept.1983) As noted in Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330 (1977), "it [is] too plain for argument that the [officer's] proffered justification-the safety of the officer-is both legitimate and weighty." See also:; People v. Springer, 118 AD2d 606, 499 NYS2d 449 (2nd Dept.1986) "Because the radio transmission contained specific and articulable facts which permitted the inference that the suspect[] [was] armed, the officers were justified in ... directing the occupants to exit, and conducting a frisk (People v. Livigni, 58 NY2d 894, 460 NYS2d 530, 447 NE2d 78 affg. 88 AD2d 386, 453 NYS2d 708 for the reasons stated in the opn. Of Justice Mangano at the App. Div.; People v. Brooks, 88 AD2d 451, 453 NYS2d 740) People v. Pitt, 110 AD2d 723, 724, 488 NYS2d 3839 (2nd Dept.1985) When the Defendant became belligerent and uncooperative it was appropriate for the police to handcuff the Defendant for their own safety. People v. Allen, 73 NY2d 378, 540 NYS2d 971 (1989); People v. [*6]Henderson, 26 AD3d 444, 809 NYS2d 567 (2nd Dept. 2006) lv. den. 6 NY3d 895, 817 NYS2d 630 (2006); People v. Williams, 305 AD2d 804, 759 NYS2d 580 (3rd Dept. 2003)

While the People are correct in asserting that under such circumstances the handcuffing of the Defendant did not constitute an arrest, See: People v. Persaud, 244 AD2d 577, 665 NYS2d 671 (2nd Dept.1997); People v. Parker, 49 AD3d 974, 854 NYS2d 233 (3rd Dept. 2008) lv. den. 10 NY3d 868, 860 NYS2d 494 (2008); People v. Dluhy, 288 AD2d 693, 732 NYS2d 724 (3rd Dept. 2001) lv. den. 97 NY2d 728, 740 NYS2d 701 (2002), an arrest and custody or detention for Miranda purposes are not the same thing. See: People v. Steffens, 10 Misc 3d 1065(A), 814 NYS2d 564 (Dist.Ct. Nassau Co. 2005) It must be kept in mind that "custody" for purposes of Miranda is not based upon either the operation of the officer's mind or the mind of the Defendant, but rather "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." People v. Yukl, 25 NY2d 585, 307 NYS2d 857 (1969); See also: People v. Paulman, 5 NY3d 122, 800 NYS2d 96 (2005); People v. Morales, 25 AD3d 624, 807 NYS2d 142 (2nd Dept. 2006)

In the matter at bar, the Defendant was approached by two police officers, frisked and handcuffed. While the court finds that the officers' actions were appropriate under the circumstances, the court further finds that the defendant was involuntarily immobilized and deprived of his freedom of movement in a significant way, amounting to custody. While the court is aware that some courts, in similar, albeit readily distinguishable circumstances, have found that a defendant was not in custody, See: People v. Congelosi, 266 AD2d 930, 698 NYS2d 810 (4th Dept. 1999) lv. den. 95 NY2d 794, 711 NYS2d 162 (2000) [defendant handcuffed to stretcher at the request of medical personnel]; People v. Cole, 233 AD2d 247, 650 NYS2d 127 (1st Dept.1996) lv. den. 89 NY2d 984, 656 NYS2d 743 (1997) [defendant restrained, inter alia, to prevent him from attempting to interfere with the efforts of medical technicians to treat the victim]; People v. LaBreck, 286 AD2d 978, 730 NYS2d 616 (4th Dept. 2001) lv. den. 97 NY2d 730, 740 NYS2d 703 (2002) [defendant handcuffed because she was attempting to interfere with efforts of ambulance personnel to assist the victim], the court cannot ignore the Court of Appeals' reiteration, "that custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived." People v. Rodney P., 21 NY2d 1, 9, 286 NYS2d 225, 233 (1967); See also: People v. Shivers, 21 NY2d 118, 286 NYS2d 827 (1967); People v. Johnson, 64 AD2d 907, 408 NYS2d 519 (2nd Dept.1978) aff'd 48 NY2d 674, 421 NYS2d 881, (1979)

Finding the Defendant to have been in custody is only half the equation. It is well established that "both the elements of police custody' and police interrogation' must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda."People v. Huffman, 41 NY2d 29, 390 NYS2d 843 (1976); See also: People v. Paulman, 5 NY3d 122, 800 NYS2d 96 (2005) The question remains whether Officer Heffernan's asking the Defendant if he had anything to drink was part of a limited investigation or an interrogation. Under the circumstances presented, the court finds that it was the latter.

The questioning of an individual will be seen as a limited investigation where the "question [is] designed to clarify the nature of the situation confronted[.]" People v. Johnson, 64 AD2d 907, 909, 408 NYS2d 519, 523 (2nd Dept.1978) aff'd 48 NY2d 674, 421 NYS2d 881, [*7](1979) See also: People v. Huffman, supra . Where, however, "criminal events at the crime scene have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation (citations omitted)." People v. Soto, 183 AD2d 926, 584 NYS2d 160 (2nd Dept.1992); See also: People v. Brogdon, 8 AD3d 290, 778 NYS2d 45 (2nd Dept. 2004); People v. Rifkin, 289 AD2d 262, 733 NYS2d 710 (2nd Dept. 2001) lv. den. 97 NY2d 759, 742 NYS2d 620 (2002)

In the matter before this court, at the time Officer Heffernan asked the Defendant if he had been drinking, the Defendant had already been frisked and was handcuffed; Officer Heffernan had already observed the strong odor of alcohol coming from the Defendant and had observed the Defendant to have glassy eyes and to be unsteady on his feet. The investigation into the original radio call was concluded, with the alleged complainant not wishing to press charges; and, Officer Heffernan had already determined that he was not going to have the Defendant perform field sobriety tests due to the Defendant's conduct and the presence of ice on in the parking lot. Bearing in mind that this was not a roadside detention pursuant to a vehicle and traffic law stop, under such circumstances, "Officer [Heffernan's] roadside question to the now-handcuffed defendant, asking him whether he was [drinking], clearly constituted a custodial interrogation which was designed not to clarify the situation but to obtain an inculpatory admission." People v. Behling, 22 Misc 3d 1107, 880 NYS2d 225 {22 Misc 3d 1107(A)} (Dist.Ct. Suffolk Co. 2009); See also: People v. Hardy, 5 AD3d 792, 775 NYS2d 322 (2nd Dept. 2004) lv. den. 3 NY3d 641, 782 NYS2d 412 (2004); People v. Santarelli, 268 AD2d 603, 704 NYS2d 90 (2nd Dept. 2000) lv. den. 94 NY2d 952, 710 NYS2d 9 (2000) Accordingly, the Defendant should have been Mirandized before he was questioned concerning his alcohol consumption; and, his response to this question must be suppressed.

This is not to suggest that Officer Heffernan lacked probable cause to arrest the Defendant for driving while intoxicated. His observation of the Defendant operating the black Cadillac, coupled with the strong odor of alcohol emanating from the Defendant, the Defendant's glassy eyes, his unsteadiness on his feet and his loud and belligerent conduct provided that probable cause. See: People v. Ball, 141 AD2d 743, 529 NYS2d 840 (2nd Dept.1988); People v. Troche, 162 AD2d 483, 556 NYS2d 403 (2nd Dept.1990); People v. Schmitt, 262 AD2d 588, 692 NYS2d 656 (2nd Dept.1999)

Thereafter, the two statements allegedly made by the Defendant at the Central Testing Section ("CTS") of the Nassau County Police Department were made while Officer Heffernan was obtaining pedigree information from the Defendant and were not in response to any question posed. These statements were made freely, voluntarily and spontaneously by the Defendant. Accordingly, these statements shall not be suppressed. See: People v. Tyrell, 67 AD3d 827, 888 NYS2d 610 (2nd Dept. 2009); People v. Edwards, 296 AD2d 555, 745 NYS2d 697 (2nd Dept. 2002)

Based upon all of the foregoing, the Defendant's application seeking to suppress his statements made to the police is granted in part and denied in part. The statement allegedly made by the Defendant at the scene of his initial encounter with Officer Heffernan shall be suppressed at the time of trial; the statements allegedly made by the Defendant at CTS shall not be suppressed.

This constitutes the decision and order of the court. [*8]

Dated: Hempstead, New York

May 17, 2010

___________________________

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1: Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961); People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965) and Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979)

Footnote 2: Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)