People v Thorpe
Annotate this CaseDecided on January 24, 2014
City Court of Mt. Vernon
The People of the State of New York,
against
Travis Thorpe, Defendant.
12-4788
Westchester County District Attorney
Mount Vernon branch
Barry Jay Skwiersky, Esq.
Attorney for Defendant
34 East 1st Street, First Floor
Mount Vernon, New York 10550
Adam Seiden, J.
A Dunaway/Mapp/Huntley/Refusal hearing was held in this matter where defendant is charged with one count of Driving While Intoxicated (V.T.L. § 1192(3)), one count of Aggravated Unlicensed Operation of a Motor Vehicle (V.T.L. § 511(1)) and four other traffic infractions. After receiving testimony the Court finds as follows:
Findings of Fact:
At the hearing, P.O. Derek Williams of the Mount Vernon Police Department testified that on November 22, 2012 at approximately 7:32 p.m. he was on routine patrol in a marked vehicle in the vicinity of 450 S. Third Avenue, Mount Vernon when he observed a gray vehicle traveling at a high rate of speed. After making his observations, P.O. Williams pursued the vehicle which pulled into a driveway of a house located at 402 S. Third Avenue. P.O. Williams, who had approached the driver side of the vehicle after pulling it over, identified the defendant as being the driver of the vehicle. P.O. Williams asked the defendant for his driver's license and registration, however, the defendant was unable to produce a license or any paperwork for the vehicle. During the initial conversation P.O. Williams observed a strong odor of alcohol coming from the defendant and the vehicle. P.O. Williams asked the driver where he was coming from and if he had been drinking. Defendant responded in sum and substance that he only had five shots and that he was only tipsy not drunk. P.O. Williams then asked the defendant to step out of the vehicle, which the defendant did. P.O. Williams testified that he then performed both the horizontal and vertical gaze [*2]nystagmus test. According to P.O. Williams defendant failed both tests because his deviation was more than 45%, however, P.O. Williams also observed that the defendant had trouble keeping his balance and was swaying back and forth even while the field test was being performed. P.O. Williams acknowledged that the fact that defendant was swaying was probably the reason he failed the gaze nystagmus test. P.O. Williams placed the defendant under arrest based upon his observations of the defendant and his failure of the field sobriety tests. A red plastic cup containing an alcoholic smelling beverage and a 1.75 ml bottle of vodka were recovered from behind the driver's side seat.
Once at police headquarters, at approximately 8:12 p.m., P.O. Mario Stewart, who had been assigned the task of assisting with the defendant, read the defendant his Miranda rights from a pre-printed form, which was admitted into evidence as People's Exhibit "1". Defendant refused to answer after being given his warnings. Defendant was given the opportunity to sign the Miranda rights sheet but he refused to respond. Then at approximately 8:17 p.m. P.O. Stewart proceeded to read the defendant his DWI warnings, a copy of which was submitted into evidence also marked as People's Exhibit "1". As stated on the form submitted in evidence, he was specifically informed that he was under arrest for driving while intoxicated, that his refusal to submit to a chemical test would result in the immediate suspension and revocation of his license, and that his refusal could be introduced into evidence against him at any trial, proceeding or hearing resulting from his arrest. After being read the warnings, defendant refused to answer. At approximately 8:25 p.m. P.O. Stewart then read the DWI warnings to defendant a second time after which the defendant once again refused to respond.
Conclusions of Law:
The Court finds the testimony given at the hearing by P.O. Williams and P.O. Stewart to be credible. P.O. Williams' observations of the defendant's violations of the Vehicle and Traffic Law, that being speeding in excess of the posted speed limit, provided him with a lawful basis for stopping the vehicle. The temporary roadside detention after stopping the defendant for the traffic infractions was permissible and non-custodial in nature. People v. Meyers, 1 AD3d 382 (2nd Dept. 2003); People v. O'Reilly, 16 Misc 3d 775 (Dist. Ct. Suff. Cty. 2007). Once lawfully stopped, P.O. Williams was permitted to conduct a reasonable initial investigation in which Miranda warnings were not required. People v. Mathis, 136 AD2d 746 (2nd Dept. 1988); People v. Burnes, 16 Misc 3d 1129(A)(Dist. Ct. Suff. Cty. 2007). It was during the initial investigation that defendant admitted that he had ingested five shots and that he was a little tipsy. These statement were not obtained by means of coercion or unfairness, but rather was voluntarily made by the defendant and therefore is admissible at trial.
P.O. Williams' observations during his initial investigation included defendant's unsteadiness on his feet and the odor of alcohol on his breath. P.O. Williams' observations of the defendant when he spoke to him, coupled with the defendant's statements and his unsteadiness on his feet after exiting the vehicle were sufficient to provided P.O. Williams with reasonable cause to believe that defendant had been driving in violation of Vehicle and Traffic Law § 1192 and therefore provided probable cause to place the defendant under arrest for being in violation of V.T.L. § 1192(3). See [*3]People v. O'Reilly, 16 Misc 3d 775 (Dist. Ct. Suff. Cty. 2007). Therefore, any evidence obtained as a result of defendant's arrest, including the plastic cup and bottle of vodka, are not subject to suppression.
However, the Court finds that P.O. Williams testimony regarding the field test performed on the defendant established that the test was not properly performed. Additionally, the Court notes that although P.O. Williams testified that he performed a vertical gaze nystagmus test, only the horizontal gaze nystagmus test is a standardized field sobriety test recognizedBased upon the foregoing, P.O. Williams' testimony regarding the performance of the field test on defendant and its results is suppressed.
The remaining issue before this court relates to the sufficiency of the DWI refusal warnings given to the defendant when he was asked to submit to a chemical test. The People are required by statute to prove that the defendant was given "sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person and that the person persisted in the refusal". V.T.L. § 11924(2)(f). See also People v. Lynch, 195 Misc 2d 814 (Crim. Ct. Bronx Cty. 2003). In the case at bar, the evidence adduced at the hearing establishes that the defendant was read the clear and unequivocal refusal rights from the DWI Alcohol Influence Report twice and as such, the defendant's motion to suppress evidence of the defendant's refusal is denied.
This constitutes the Decision and Order of this Court.
Dated:January 24, 2014
Mount Vernon, New York
____________________________________
HON.ADAM SEIDEN
Associate City Judge of Mount Vernon
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