People v Cepeda

[*1] People v Cepeda 2011 NY Slip Op 51905(U) Decided on September 8, 2011 Supreme Court, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2011
Supreme Court, Kings County

The People of the State of New York,

against

Mercedes Cepeda, Defendant.



2009KN020783



For The People

Office of Charles J. Hynes

District Attorney - Kings County

350 Jay Street

Brooklyn, New York 11201

By: Daniel Calabrese, Esq.

For the Defendant

Mark S. Cossuto, Esq.

32 Court Street, Suite 207

Brooklyn, New York 11201-4404

Gerri Pickett, J.

Motion to reargue granted. Defendant's suppression motion is denied.

The initial stop of the defendant was lawful. When the defendant was observed traveling 50 mph in a 30 mph speed zone, this gave the officer reasonable cause to stop the vehicle for a violation of the vehicle and traffic law for speeding. Upon stopping the vehicle, the officer smelled alcohol emanating from the car and observed that the defendant's bloodshot, watery eyes. There existed probable cause for defendant's arrest. The refusal warnings were given in clear and [*2]unequivocal language. Therefore, evidence of the refusal is admissible at trial.

Procedural Background

On March 15, 2005, the defendant, Mercedes Cepeda, was arraigned and charged with Operating A Motor Vehicle While Under The Influence Of Alcohol, among other VTL offenses.

On December 14 and 22, 2010, the court held a combined Ingle/Dunaway and refusal suppression hearing to determine whether defendant's vehicle was lawfully stopped, whether there was probable cause to arrest the defendant, and whether the defendant was given proper refusal warnings. On February 2, 2011, the court granted suppression on the ground that the officers lacked probable cause [FN1] for stopping defendant's vehicle in the first instance pursuant to People v Ingle (36 NY2d 413 [1975]).

On February 15, 2011, the People made an oral motion to reargue the court's decision. Defense requested a response date. On the same date, the court set the following motion schedule. The People's written motion was due on February 28, 2011 and defense counsel's response was due on March 28, 2011. The case was adjourned to April 25, 2011 for decision.

Off calendar, on March 11, 2011, the People served and filed the instant written motion to reargue. The court set a new motion schedule. Defendant's response was due on May 31, 2001. The case was adjourned to June 30, 2011 for decision. On June 30, 2011, defense counsel withdrew his request to respond to the People's motion to reargue.

Suppression Hearing

On December 14, 2010, New York City Police Officer Jose Ruiz, Shield No. 22875, Highway 2 Command testified on behalf of the People. On December 22, 2010, New York City Police Officer Luis Rios, Shield No. 3812, Highway 2 Command, Brooklyn, New York testified on behalf of the People. The defendant called no witnesses.

[*3]Testimony of Witnesses

1. Officer Ruiz

Officer Ruiz testified that he has been a member of the Highway Command 2 in Brooklyn, New York for approximately ten years. He testified that at the Police Academy, he received training in how to identify intoxicated people, how to use the Intoxilyzer 5000 EN machine, how to administer a Portable Breathalyzer Test as well as how to complete the paperwork when processing an intoxicated person. Officer Ruiz also testified that during the course of his career, he has made approximately thirty arrests for driving while under the influence of alcohol or drugs and has been the testing officer in over seven hundred cases where arrests were made for driving while intoxicated. In addition to his professional experience, Officer Ruiz testified that he has observed individuals in social settings become intoxicated.

On March 15, 2009, he was working the 9:00 p.m. to 5:35 a.m. tour with his partner, Officer Adrione [FN2]. They were in uniform in an unmarked vehicle. At approximately, 2:00 a.m., his Supervisor, Sergeant Rios, called him and directed him to go to the intersection of 4th Avenue and 21st Street, Brooklyn, New York to test an individual suspected of driving while drinking. Once at the location, Officer Ruiz testified that Sergeant Rios told him he had followed a black Toyota Camry that was traveling at a high rate of speed on 4th Avenue for about two blocks. Officer Ruiz testified that Sergeant Rios said he stopped the vehicle on 21st Street and observed that the driver was exhibiting signs of intoxication.

Officer Ruiz then testified to the following: He believed the speed limit in that area is thirty miles per hour. When he approached the vehicle, he observed an individual, whom he identified in court as the defendant, sitting in the driver's seat. The officer testified he asked her to take the Portable Breathalyzer Test. As he was explaining to the defendant about how to use the Breathalyzer, he observed that she had watery, bloodshot eyes and light odor of alcohol on her breath. Officer Ruiz further testified that he was unable to get a proper reading because the defendant was unable to blow long enough and strong enough for the machine to register any results. He testified that he believed but was not sure if his supervisor tested the defendant. Nevertheless, he testified that he did not know the results if she was tested.

Officer Ruiz testified that at this point he placed the defendant under arrest because he believed she was intoxicated, and this belief was based on his observations and the results of the reading his supervisor got [FN3]. After the defendant was arrested, she was placed in a RMP and transported to the 78th Precinct for IDTU testing. At the IDTU, Officer Ruiz testified that when he asked the defendant to take the IDTU test she responded no. He testified that he then read [*4]refusal warnings to her. He testified that she responded no for the second time. Officer Ruiz testified that the defendant's refusal was documented on a refusal form. Lastly, Officer Ruiz testified that in his opinion the defendant failed the nose test portion of the coordination test because she failed to double tap her nose a couple of times and used the pad part of her finger instead of the tip of the index finger. After the conclusion of the of the officer's testimony, the court reviewed the IDTU tape.

2. Sergeant Rios

Sergeant Rios testified that he has been a sergeant for nine years. For the past five years, he has been assigned to Highway Command 2, Brooklyn, New York. Sergeant Rios testified that he has received training in how to recognize if a someone is intoxicated, how to administer the Portable Breathalyzer Test, and how to administer coordination tests. The officer testified that he has been involved in approximately forty to fifty Driving while intoxicated arrests, and in addition to his professional training, he has observed individuals in social settings become intoxicated.

On March 15, 2009, he testified that he was working the 9:00 p.m. to 5:57 a.m. tour. Sergeant testified that at approximately 2:00 a.m., he was traveling Southbound on the Prospect Expressway and Fourth Avenue, Brooklyn, New York. He was in uniform in an unmarked police vehicle. While he was stopped at the red light, he testified that he observed the car next to him accelerated at a high rate of speed when the light turned green. He testified that he traveled alongside the vehicle for about two blocks, and the speed limit in the area is 30 mph. He further testified that although his vehicle was not equipped with any speed detection devices, when he looked at his speedometer he was traveling 50 miles per hour. Sergeant Rios testified that he also observed that the defendant was driving faster than any of the other cars on the road. He further testified that at this point he turned on his emergency lights and pulled the vehicle over. The officer then testified that even though he has not had any training in speed estimation, he has used this same method (i.e., checking his speedometer) to clock how fast a person is traveling in approximately two to three previous cases.

After approaching the vehicle, Sergeant Rios testified that he asked the driver, whom he identified in court, as the defendant for her license, registration, and insurance card. While he was engaged in conversation with the defendant, he observed the smell of alcohol and bloodshot, watery eyes. Lastly, he testified that based on his professional opinion, he believed that the defendant was intoxicated, and at no time was his gun drawn nor were any promises or threats made to the defendant.

People's Argument

The People move to reargue on the ground that the when the officer observed the defendant traveling at the rate of 50 mph in a 30 mph speed zone, this gave him reasonable suspicion to believe that the defendant had violated the vehicle and traffic law by speeding. Based on his observation, the officer, therefore, made a lawful Ingle vehicle stop. [*5]

The People further argue that there is no basis to suppress evidence of defendant's refusal to submit to a chemical test because she was given sufficient warnings in clear and unequivocal language of the effect of her refusal and persisted in the refusal.

Further, the People argue that there is no constitutional right to refuse to take a chemical test. Therefore, defendant's request for a non-statutory pre-trial suppression hearing on the evidentiary matter of her refusal to take the chemical should be denied as a matter of law. The issue whether the evidence is admissible should be dealt with upon the laying of the proper foundation at trial.

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]).

A police officer may stop a vehicle on a public highway if he or she observes its driver

commits a vehicle/traffic offense (People v Ingle, 36 NY2d 413, 420 [1975]). Vehicle and Traffic Law § 1180 (a) provides: "No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." A violation of VTL 1180 occurs when a motorist drives 10 or more miles per hour over the speed limit (see People v Olsen, 22 NY2d 230 [1968]).

When the officer testified that he observed defendant commit a traffic violation by traveling 50 mph in a 30 mph speed zone, this gave him reasonable/probable cause to lawfully stop the vehicle for a violation of VTL 1180 [a] for speeding. When the officer approached the car and smelled alcohol coming from the vehicle and noticed that defendant had bloodshot watery eyes. These facts gave the police officer reasonable suspicion to investigate further (see People v DeBour, 40 NY2d 210, 218 [1976]; People v Sawinski, 246 AD2d 689, 690 [3rd Dept. 1981], app. denied, 91 NY2d 930 [1989]). Upon further investigation, the defendant was offered a field sobriety test. The test results were inconclusive. The arresting officer's personal observations of the smell of alcohol and bloodshot eyes constituted sufficient probable cause for the defendant's arrest for Operating a Motor Vehicle While Under the Influence of Alcohol (see People v Bigelow, 66 NY2d 417, 423 [1985]; People v Farrell, 89 AD2d 987, 988 [2nd Dept. 1982]). Therefore, defendant's motion which seeks suppression of her arrest due to lack of reasonable suspicion/probable cause to make the initial stop is denied.

Since the defendant was given clear and unequivocal warnings, her refusal to submit to the chemical test is admissible at trial. Therefore, defendant's motion to suppress her refusal to submit to the chemical test is denied. [*6]

Conclusion

Pursuant to the above factual analysis and existing case law, there was both reasonable suspicion and probable cause to stop defendant's vehicle when the officer observed a violation of the VTL pursuant to People v Ingle and People v Robinson. When the officer smelled alcohol and observed that the defendant had bloodshot watery eyes, these facts established probable cause for the defendant's arrest for driving while intoxicated. Therefore, for the reasons set forth above defendant's suppression motion is denied in its entirety.

The foregoing constitutes the decision and order of the court.

________________________________Hon. Gerri PickettJudge of the Criminal Court

Dated: Brooklyn, New YorkSeptember 8, 2011

Footnotes

Footnote 1:In light of Whren v United States (571 U.S. 806 [1996]), which rejected the argument that pretext stops were unlawful, there remains the question whether New York requires probable cause or reasonable suspicion to justify an automobile stop for a traffic violation. Prior to 2001, the standard for stopping an automobile was reasonable suspicion of a violation of the VTL, pursuant to People v Ingle, 36 NY2d 413 [1975]). In 2001, the Court of Appeals in People v Robinson (97 NY2d 341, 346 [2001]), adopted Whren, and held that an automobile stop is lawful when an officer has probable cause to believe that an individual has violated the VTL. In People v Hawkins (45 AD3d 989 [3rd Dept. 2007]), the Appellate Court held that in pretext cases, the standard for stopping a vehicle has increased from reasonable suspicion to probable cause. In People v Prado (2 Misc 2d 1002(A) [Sup. Ct. NY Co. 2004]), the court held that the standard for non-pretext stop cases is still reasonable suspicion. As a practical matter, the distinction between probable cause and reasonable suspicion may not be significant in the context of an automobile stop for a traffic infraction (see Kamins, New York Search and Seizure § 5.02 [1][a], at 5-4 [2008]). In most cases, once a police officer observes a traffic infraction, that will be sufficient to constitute probable cause (Id. at 5-4).

Footnote 2:Phonetic spelling.

Footnote 3:This testimony contradicts the officer's statement that he was not sure if the sergeant tested her and he did not know the results of the sergeant's test.