People v Lovelle

[*1] People v Lovelle 2011 NY Slip Op 51903(U) Decided on September 14, 2011 Criminal Court Of The City Of New York, Kings County Pickett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2011
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Licelle Lovelle, Defendant.



2010KN068463



FOR THE PEOPLE

Office of Charles J. Hynes, Esq.

District Attorney, Kings County

350 Jay Street

Brooklyn, New York 11201

By: Amatullah Booth, Esq.

FOR THE DEFENDANT

Harold C. Baker, Esq.

32 Court Street, Suite 507

Brooklyn, New York 11201

Gerri Pickett, J.

Motion denied.



The officer had a credible objective reason for approaching the vehicle when he observed it was partially parked in a crosswalk. After observing the occupants asleep in the vehicle, the officer was justified in making a level one DeBour request for information. Upon observing the driver of the vehicle display the classic signs of intoxication and receiving the results of the field sobriety test, the officer had probable cause to arrest the defendant for driving while under the influence of alcohol or drugs. The statements made by the defendant at the scene were in response to a general inquiry and not interrogative. Thus, Miranda warnings were not required. The statements in the IDTU room were made after defendant was given Miranda warnings. Therefore, those statements are admissible.

Charges

On August 27, 2010, defendant, Licelle Lovelle, was arraigned and charged with one count each of the following offenses

VTL 1192 [1]Operating A Motor Vehicle While Under the Influence Of Alcohol Or Drugs VTL 1192 [2]Operating A Motor Vehicle While Under the Influence Of Alcohol Or Drugs

VTL 1192 [3]Operating A Motor Vehicle While Under the Influence Of Alcohol Or Drugs

Procedural Background

On August 27, 2010, defendant was arrested for operating a motor vehicle while intoxicated and was arraigned on the charges on the same date. On June 2, and 14, 2011, the court held a Dunaway/Huntley suppression hearing to determine whether there was probable cause to arrest the defendant in the first instance and whether statements made by the defendant at the scene and in the IDTU room should be suppressed for lack of Miranda warnings, pursuant to People v Huntley, 15 NY2d 72, 555 N.Y.S.2d 838, 204 N.E.2d 179 [1965]; Dunaway v New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 [1979]; and Miranda v Arizona, 384 U.S. 477, 86 S. Ct. 1602 [1966])).

At the suppression hearing, the People called two witnesses: Police Officer Monroe Sparks, New York City Police Department, Shield No. 22495, 70th Precinct, Brooklyn, New York and Police Officer Gerald Cucchiara, New York City Police Department, Shield No. 23699, 70th Precinct, Brooklyn, New York. No witnesses were called by the defendant.

On June 14, 2011, during closing arguments, defense counsel made an oral request to the court for submission of a written motion. The court granted defense counsel's request. On July 19, 2011, defense counsel served and filed an affirmation in support of his motion to suppress the evidence in this case. The People opposed the granting of the written motion and have declined to submit a written response to defendant's affirmation [FN1]. This decision is based on oral arguments at closing presented by both parties and upon defendant's written affirmation.

Testimony of Officer Sparks

Officer Sparks testified that he has been an officer with the New York City Police Department for approximately nineteen years, and during that time he has made approximately [*2]forty-five (45) DWI arrests. He testified that on August 27, 2010, he was on patrol with a partner.[FN2] They were in uniform and in a marked vehicle while touring in the 70th Precinct. At approximately 4:10 a.m., while they were on Ocean Avenue and Dorchester Road, he testified that he received a telephone call on his cell phone from a fellow officer about a possible DWI. Officer Sparks testified that the caller told him a female sitting behind the driver's wheel was slumped over in a vehicle parked in the crosswalk.

At approximately 4:10 a.m., the Officer Sparks testified that he arrived at the scene at the intersection of Woodruff Avenue and Saints Pauls Place. He first observed an individual whom he described as the defendant leaning against a light pole. He also testified that he identified Officers Cucchiara and Waye, among other officers who were already at the scene. The officer testified that in addition to the above observation, he made several other observations of the defendant to wit: she had a strong smell of alcohol on her breath, her face was flushed, her clothes were disheveled, her eyes were bloodshot, and she was swaying on her feet while holding on the light pole in order to maintain her balance.

Officer Sparks also testified that at some point he was given keys to the car but he does not know who was that person and if the person was an officer. Officer Sparks further testified that he was called to the scene by Officer Cucchiara who had used his cell phone to radio him on a police radio. Because Officer Cucchiara used his cell phone, there would be no documentation of the call.

The officer testified he observed that the vehicle was partially parked in the crosswalk and asked the defendant if she had been drinking. The defendant answered, she had "two and a half glasses of wine." He testified that he asked her where she was coming from and she answered, "Randazzo's Restaurant." The officer further testified that defendant told him that she had been parking the vehicle for a friend. Officer Sparks then testified he asked defendant to submit to a Breathalyzer Test, which resulted in a .10 alcohol level. The officer also testified that at no time while he was speaking to the defendant was she handcuffed, under arrest or his gun was drawn. After receiving the test results, the officer testified that he arrested the defendant and took her to the 78th Precinct for Intoxicated Driver Testing Unit (IDTU).

At the 78th Precinct, the officer testified that the defendant was placed in a holding cell where he administered Miranda warnings to her and then proceeded to asked her questions in order to complete the IDTE paperwork. At this point in the hearing, Officer Sparks read to the court the Miranda warnings that he testified were given to the defendant for the IDTE paperwork. The officer further testified that the chemical test resulted in a .16 blood alcohol content. After completing the IDTE paperwork, the officer testified that the defendant was taken back to the 70th Precinct for further arrest processing.

Testimony of Officer Cucchiara

Officer Cucchiara testified that he has been employed with the New York City Police Department for five and a half years. On August 27, 2010, he testified that he was working out of the 70th Precinct and assigned to the anti-crime unit. He was working in plain clothes in an unmarked vehicle with his partner Sergeant Timofeev. The officer testified that the anti-crime unit works in plainclothes and drives around looking for violent crimes or crimes that are about to happen, or as they are happening, in order to stop them. The officer further testified that the area he was patrolling had a couple of recent shootings and robberies. He testified that at approximately 4:10 a.m., he observed a vehicle that was partially parked in the crosswalk at the corner of Woodruff Avenue and St. Pauls Place. The officer further testified that in the vehicle he observed two individuals, a male in the passenger seat, and a female whom he described as the defendant in the driver's seat.

Officer Cucchiara also testified that when he pulled up next to the vehicle, he observed all the windows were down and both occupants, driver and passenger, were asleep inside the vehicle. He further testified that at first he honked his horn but got no response. He then he approached the driver's side of the vehicle and looked inside. He testified that he knew the vehicle was on and running because he heard the engine running, the hood was warm when he touched it and he felt the vehicle's vibration. The officer testified that he turned the vehicle off, and knocked on the car window three times before the defendant woke up.

The officer testified that the defendant appeared disoriented and for safety reasons, he asked her a series of questions. He testified that he asked her if she knew where she was, and she answered, "No." He testified that he asked the defendant where she was coming from, and she said she was coming from a restaurant. He testified that he asked her if she had been drinking and she replied that she had "two drinks." He also testified that defendant told him that she drove from the restaurant to the location where the vehicle was parked.

The officer further testified that at some point during the time he was speaking to the defendant he reached inside the vehicle to turn it off. He testified that he did not know who took the keys from the vehicle.

The officer also testified that when the defendant stepped out of the vehicle, she was swaying and could not stand up straight. At that point, he testified that when he observed that her speech was slurred, he administered the abc's and numbers tests. He further testified that as the defendant was performing these tests he observed that she was swaying and looking unstable, and he observed her slouched over a light pole. He testified that the other officers at the scene were at the vehicle talking to the passenger.

Officer Cucchiara testified that Officer Waye [FN3] called Officer Sparks because Sparks was [*3]experienced and specialized in DWI arrests. Officer Cucchiara further testified that when he observed the occupants asleep in the high crime area, he initially approached the vehicle for concern about the safety of the vehicle occupants. Officer Cucchiara testified that Officer Sparks arrived at the scene within a couple of minutes of being contacted, and when Sparks arrived, he observed him asking the defendant some questions and then he administered a portable breath test. Officer Cucchiara further testified that when he first observed the vehicle it was already parked. The officer further testified that at no time while he was speaking to the defendant was she handcuffed, under arrest or his gun was drawn.

Conclusions and Rule of Law

At a suppression hearing, the People have the initial burden of presenting evidence of probable, or reasonable cause to show the legality of police conduct (see People Baldwin, 25 NY2d 66 [1969]; People v Malinsky, 15 NY2d 86 [1965]; People v Wise, 46 NY2d 321 [1978]; People Dodt, 61 NY2d 408 [1984]; People v Moses, 32 AD3d 866 [2nd Dept. 2006] lv. den. 7 NY3d 297 [2006]). Once the People have met this burden, it is the defendant that bears the burden of proving the illegality of police conduct (People v Berrios, 28 NY2d 361 [1971]; People v DiStefano, 38 NY2d 640 [1976]; People v Lombardi, 18 AD2d 177 [2nd Dept. 1963]).

In sustaining their burden of establishing the legality of the officer's conduct, the People must demonstrate that the circumstances coupled with the defendant's behavior justified the arresting officer's intrusion as prescribed by the Court of Appeals in People v DeBour's four-tier approach to police-citizens encounters (see People v DeBour, 40 NY2d 210, 223 [1976];People v Hollman, 79 NY2d 181, 184 [1992]; People v Soto, 2010 NY Slip Op 5063 [U]).

A level one approach allows an officer to approach an individual and inquire about

basic, nonthreatening matters such as name, address and destination. This first level is known as a "request for information". The police must have an articulable reason for the questioning, but the reason need not be indicative of criminality (see People v Hollman, supra at 184).

The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot." When an officer has a reasonable suspicion that an individual has been involved in criminal activity, that officer may forcibly stop and detain that person. Finally, an officer may effect a full blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime (DeBour, 40 NY2d at 213, supra).

Under DeBour, the officer must have some credible objective reason for approaching the [*4]defendant. Courts have held that a violation of the VTL is a credible objective reason to approach a vehicle and its occupants to request information under Debour (see People v Heston, 152 AD2d 999 (N.Y.A.D. 1989).

1. Probable Cause to Arrest

Vehicle and Traffic Law § 1202 (1) (d) provides: "No person shall stop, stand or park a vehicle: on a crosswalk. A crosswalk may have painted lines but in absence of painted lines a crosswalk is defined as the area at an intersection within the extensions of the sidewalk lines, between opposite sides of the roadway [FN4]. A crosswalk at an intersection need not be delineated by lines or other markings on the road's surface (see Kochloffel, Giordano, 99 AD2d 798 [N.Y.A.D. 1984]). In this case, the officer had objective credible reason for approaching the defendant's parked car and make a level one inquiry request for information when he observed the vehicle partially parked in a crosswalk (see People v Citron, 255 AD2d 452 [1998]; lv. denied 92 NY2d 10230 [1998]; People v Heston, 152 AD2d 999 [1989]).

Here, the officer testified that he wanted to check the car, which was parked in a crosswalk, to see if there was a problem or if its occupants were all right. He also stated that he was concerned for the safety of the occupants since the car was in a high crime area that had just experienced some shootings and robberies. This testimony by the officer provides a sufficient basis to justify the approach and inquiry (see People v Heston, supra).

After making a level one DeBour request for information and observing that defendant was disoriented and unsteady on her feet, it was reasonable for the officer to suspect that the defendant was driving while intoxicated. Upon the arrival of Officer Sparks, an experienced DWI officer, to the scene, it was reasonable for him to ask the defendant to take a field sobriety test after he observed the classic signs of intoxication, such as a strong smell of alcohol on her breath, flushed face, disheveled clothing, bloodshot eyes, and unsteady balance. When the defendant failed to pass the field sobriety test, the officer had probable cause to arrest her for driving while intoxicated (see People v Goodell, 164 AD2d 321, 323-324 [2nd Dept. 1982]).

People v Ingle (36 NY2d 413 [1975]) stands for the proposition that a vehicle may be stopped for a "routine traffic check" when a police officer reasonably suspects a violation of the Vehicle and Traffic Law. Similarly here, the officer was entitled to approach the stopped vehicle after observing violation of the VTL for parking in a crosswalk. The officer was further entitled to instruct defendant to exit the vehicle after her actions gave him reasonable suspicion to believe that she might be intoxicated, namely slumped over at the wheel, disoriented and that she had been drinking in response to the general questions. Collectively, these facts justified the arrest of the defendant based on probable cause.Since there was probable cause to arrest the defendant after the lawful stop of defendant's vehicle, defendant's Dunaway motion is [*5]accordingly denied.

2. Suppression of Statement

The defendant was not in custody when she made statements to the officer at the scene. The officer was justified in making a level one DeBour approach after observing a violation of the VTL for parking in a crosswalk and the occupants asleep in the vehicle. His questioning was a general basic request for information.

Based on the totality of the circumstances in this case, an individual in defendant's position, not guilty of any crime, could not have reasonably considered herself in custody during the routine questioning by the police for information (see People v Yukl, 25 NY2d 585 [1969], cert. denied 400 U.S. 851, 91 S. Ct. 78 [1970]). Furthermore, there was no evidence that defendant was threatened, restrained or abused during the questioning. Also, since several officers were at the scene and there was no evidence that either of the officer who testified were the ones who took the keys from the vehicle, there was no proof that the defendant was under arrest prior to taking the portable field sobriety test. Given the totality of these facts, there was no legal requirement that Miranda warnings should have been administered to the defendant at the scene. Therefore, the branch of defendant's motion seeking suppression of the statements she made to the officer at the scene is denied.

With respect to the statements given to Officer Sparks in the IDTU room, the evidence show that these statements were made after the defendant had been given Miranda warnings. Thus, they were lawfully obtained. Therefore, the portion of defendant's motion seeking suppression of the statement made in the IDTU room is denied.

Conclusion

The officer had a credible objective reason for approaching the vehicle when

he observed a VTL violation of a vehicle partially parked in a crosswalk. After observing the occupants asleep in the vehicle, including the driver, the officer was justified in making a level one DeBour request for information for the occupants' safety in a high crime area. Upon observing the driver display the classic signs of intoxication and receiving the results of the field sobriety test, the officer had sufficient probable cause to arrest the defendant for driving while under the influence of alcohol.

Since the statements made by the defendant at the scene were in response to a general investigative inquiry and not interrogative, Miranda warnings were not required. The statements in the IDTU room were made after defendant was given Miranda warnings. Thus, those statements are admissible. Defendant's motion to suppress her arrest and the statements she made to the officers is denied in its entirety.



The foregoing constitutes the decision and order of the court. [*6]

________________________________

Hon. Gerri Pickett

Judge of the Criminal Court

Dated:Brooklyn, New York

September 14, 2011

Footnotes

Footnote 1:The court was advised on September 12, 2011 that the People would not be responding to the defendant's written affirmation.

Footnote 2:The partner was not identified.

Footnote 3:Officer Waye is one of the other follow officers, besides Cucchiara, that Officer Sparks earlier testified that he recognized when he arrived at the scene.

Footnote 4:See Code 50 of the New York City Department of Finance, Adjudications Bureau, "Your Guide To Parking Ticket Hearings."