People v Cimino

[*1] People v Cimino 2015 NY Slip Op 51139(U) Decided on August 3, 2015 Just Ct Of Town Of Webster, Monroe County DiSalvo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 3, 2015
Just Ct of Town of Webster, Monroe County

People of the State of New York,

against

Christopher B. Cimino, Defendant.



14080259



Cassidy Crough, Esq., Assistant District Attorney

Steven E. Feder, Esq., Attorney for the Defendant
Thomas J. DiSalvo, J.

The defendant was charged with driving while ability impaired by

drugs, VTL § 1192 (4), and being an unlicensed operator, VTL § 509 (1), by uniform traffic

informations on August 11, 2014 at approximately 2:33 A.M. The latter charge was dismissed

for failure to provide a supporting deposition within thirty days as required by CPL § 100.25 (2).

Defense counsel filed omnibus motions requesting, among other things, a probable cause hearing

and a Huntley hearing which were conducted on a bifurcated basis on April 10, 2015 and May

29, 2015.

The People presented one witness, to wit: Webster Police Officer Scott Smith. Officer

Smith testified that he was dispatched to a residence on Hard Rock Road because of a neighbor

complaining about a noisy house party. While Officer Smith was speaking to the owner of the

residence in question, he observed a red Cadillac that drove by the home and then turned around

and came back in front of the same residence. He further testified that the vehicle stopped in

front of the driveway of said residence. He then stated that he approached the vehicle to advise

the driver that the party was winding down and that if he was just arriving there was no reason to

stay. He indicated that the driver rolled down the window in response to the approach of the

officer. In so doing the officer detected the odor of marijuana emanating from the said vehicle.

The officer asked the driver if he had been smoking marijuana, who indicated that he had done

so. The driver had no identification on his person, but identified himself as Christopher Cimino.

At that point the officer directed the defendant out of the vehicle, whereupon the defendant

performed various roadside tests. The defendant performed the horizontal gaze nystagmus test,

the walk and turn test, the one leg stand test and the Romberg balance test. The officer testified

that the defendant failed each of those tests. He also testified that the defendant exhibited

various indicia of impairment. As a result the defendant was arrested for driving while ability

impaired by drugs, VTL § 1192 (4). The officer requested the assistance of a drug recognition

expert. Miranda warnings were given to the defendant at the scene and he agreed to speak to the

officer. The defendant was eventually transported to Strong Memorial Hospital for a blood draw.

The drug recognition expert did not testify at the hearing.

The defendant then testified on his own behalf. He stated that he drove onto Hard Rock

Road at the time in question to attend a party. He saw cars parked on both sides of the road and

was unable to park. So he turned around at the end of the road, which was a cul-de-sac. Upon

turning around he proceeded back toward the house that was hosting the party. He stated that as

he was approaching the front of that house he was going approximately five miles per hour. He

observed a police officer in front of said house, whereupon he made eye contact with the officer.

He further testified that the officer motioned him to stop his vehicle, which he in fact did. That

is when the defendant lowered his window and the officer informed him that the party was over

and that there was no reason to stay. This led to the officer's detection of the odor of marijuana,

which led to the officer ordering the defendant out of his vehicle.

There is a substantial difference between the testimony of the officer and the testimony

of the defendant. The officer stated that he observed the defendant's vehicle to be stopped in the

road on Hard Rock Road. He further indicated that the defendant stopped his vehicle on his own

accord. The defendant testified that he stopped his vehicle upon being directed to do so by

Officer Smith. This then begs the question as to which set of facts the court should rely on.

Both individuals testified credibly.

Issues Presented. Was the defendant's car stopped but not parked when approached by the officer or was it

moving when stopped?

Did the officer have authority to approach the defendant's stopped but not parked

vehicle?

Did the officer have probable cause to stop the defendant's vehicle?

Did the officer have probable cause to order the defendant to exit the vehicle?

Did the office have probable cause to arrest the defendant?

Legal Analysis.

Approaching a Stopped But Not Parked Vehicle.Both the testimony of the officer and

the defendant established that the said vehicle was not parked. The officer's testimony described

the defendant's vehicle as being stopped in the road in front of the residence hosting the party on

Hard Rock Road.

"Determination whether a seizure occurred here—where the car was neither

parked nor moving—requires the fact finder to apply a settled standard:

whether a reasonable person would have believed, under the circumstances,

that the officer's conduct was a significant limitation on his or her freedom

(see, People v Bora, 83 NY2d 531). That involves consideration of all the facts—for example, was there a chase; were lights, sirens or a loudspeaker used; was the officer's gun drawn, was the individual prevented from moving; how many verbal commands were given; what was the content and tone of the commands; how many officers were involved; where did the encounter take place (id.)." (People v. Ocasio, 85 NY2d 982,984, 629 N.Y.S.2d 161,162 [1995])

Under that standard the initial approach of the officer to the defendant's stopped vehicle

could not be considered a significant limitation on the defendant's freedom. However, the

analysis does not end there. "Even where no forcible seizure occurs, privacy interests may still be implicated. An intrusion that does not rise to a seizure must be predicated on more than a hunch, whim, caprice or idle curiosity ( People v De Bour, 40 NY2d 210, 217). In the case of a car that has been approached but not seized, as we recently noted in People v Spencer (84 NY2d 749), the police must possess an articulable basis for requesting information. That is supplied by an objective, credible reason not necessarily indicative of criminality (see, e.g., People v Hollman, 79 NY2d 181, 187, 194 [defendant's placement of bag at distance from himself]; People v Harrison, 57 NY2d 470, 475, supra [dirty condition of rental car]; People v Moore, 47 NY2d 911, revg for reasons stated in dissenting opn 62 AD2d 155, 157-160 [bleeding defendant carrying television in pillow case]; People v De Bour, 40 NY2d 210, 220, supra [defendant's crossing of street upon sighting of officers])."[FN1]

In this case the reason for the officer's approach of the defendant was twofold. As stated

in his supporting deposition he"... approached the vehicle to inform the operator the party was

winding down, and that if he was just arriving there was no reason to stay." First, it was

instructional, i.e. advising the defendant that the house party was over. Second, it was informational, in that the officer wanted to know if the defendant was just arriving at the party. "In fact, it is well established by prior case law that a police officer, in directing a level I request for information to an occupant of an already-stationary vehicle, is entitled to ask such a person—whether the driver or a passenger—for documentary identification, such as a driver's license."

(People v. Thomas, 19 AD3d 32, 42, 792, N.Y.S.2d 472, 480. [1st Dep't 2005]). In the current

case it would appear that the defendant voluntarily rolled down the window, which resulted in

the officer noticing the odor of marijuana coming from the defendant's vehicle.

If in fact the defendant stopped his vehicle on his own and was standing and not parked in

the road, the officer had the right to approach the vehicle and inquire as to why the defendant was there. Thus any observation of any illegal activity of the defendant made after this lawful approach would be the basis for probable cause to detain the defendant.

Stopping a Moving Vehicle. The standard for stopping a moving vehicle by a police

officer is higher than the standard for approaching a parked or a standing vehicle. That is

because the expectation of privacy of the occupants of a moving vehicle is greater as is the level

of intrusion. "In this regard, a vehicle stop by the police is a De Bour level 3 seizure."

(Gertenzang, Handling the DWI Case in New York [2014-2015 Ed § 1:5]). A police officer has

authority to stop a moving vehicle in either of two possible situations. First, "Where a police

officer entertains a reasonable suspicion that a particular person has committed, is committing or

is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of

that person CPL 140.50, subd 1" (People v. De Bour, 40 NY2d 210,223, 386 N.Y.S.2d 375,385

[1976]). That is the De Bour level three stop. Second, any violation of the Vehicle and Traffic

Law can justify the stop of a moving vehicle. "A police officer who can articulate credible facts

establishing reasonable cause to believe that someone has violated a law has established a

reasonable basis to effectuate a stop." That includes the violation of a law designated a traffic

infraction. It is now well established that "... the decision to stop a vehicle is reasonable where

the police have probable cause to believe that a traffic infraction has occured ...." (People v.

Robinson, 97 NY3d 341, 354, 741 N.Y.S. 3d 147, 155 [2001])[FN2]

In the instant case there was no testimony by the officer that prior to the stop he had either

reasonable suspicion that a crime was about to be committed or was being committed by the

defendant. Nor was there any testimony that the defendant had committed a traffic violation.

Thus the stop of the defendant's vehicle would not be justified if in fact the defendant's vehicle

was in motion at the time of said stop.

People's Burden of Going Forward. This all brings us back to the original question of

fact. Was the defendant's car stopped or in motion at the time it was detained by the arresting

officer? "It is the People's burden to demonstrate the legality of police conduct in the first instance (see, People v Berrios, 28 NY2d 361, 367; People v Malinsky, 15 NY2d 86, 91 n 2; People v Wise, 46 NY2d 321, 329). The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him (see, People v Berrios, supra at 367; People v Baldwin, 25 NY2d 66, 70; People v Whitehurst, 25 NY2d 389, 391; Nardone v United States, 308 US 338, 341-342), and that the police lacked probable cause to arrest him (see, People v Milhouse, 246 AD2d 119)." (People v. Thomas, 291 AD2d 462,463, 738 N.Y.S.2d 357 [2002])

As previously stated, both the officer and the defendant testified credibly.I note that the

officer's testimony is consistent with the statements made in the addendum to his supporting

deposition, wherein he alleges that the defendant was stopped in the road. The supporting

deposition was made by the officer on the same day of the defendant's arrest.The credibility of

the officer's testimony as to the defendant's car being stopped but not parked in the road is

sufficient to establish that the People have met their burden to demonstrate the legality of the

police conduct in the first instance, i.e. the level I approach of defendant's vehicle for

information.Because of the seemingly credible testimony of both the officer and the

defendant, one is forced herein to give equal weight to the testimony of each said witness. If the

credibility of each witness is perceived by the trier of fact to be equal, then by definition the

defendant has failed to prove by a preponderance of the evidence that his vehiclewas in fact

moving when stopped by the officer, which would require reasonable suspicion that a crime is

being committed or is about to be committed or the violation of a Vehicle and Traffic Law.[FN3]

Authority to Order Defendant From the Vehicle and Probable Cause to Arrest. Since

the officer was justified in approaching the defendant's vehicle and that upon said approach he

observed the odor of marijuana emanating from the vehicle and that because the defendant

admitted to having smoked marijuana, the officer was justified in ordering the defendant out of

the vehicle. (See People v. Tittensor, 244 AD2d 784,785, 666 N.Y.S.2d 267 [3rd Dept. 1997]) Based on the further observations of the defendant and the failure of the defendant to pass any of the roadside tests the officer was justified in arresting the defendant for driving while ability [*2]impaired by drugs, VTL § 1192 (4).[FN4] Finally, "There is no requirement in the law that would

only permit an arrest for this charge by a drug recognition expert." (People v. Guinan, 40

Misc 3d 1236 (A), 2013 NY Slip Op 51436(U) ** 11 [Webster Justice Ct. 2013])

Huntley Hearing. The statements made to the officer at the scene were voluntarily given

during the investigatory portion of the stop of the defendant. Upon arrest the defendant was

properly advised of his Miranda rights. The defendant agreed to speak to the arresting officer.

The People met there burden of proof beyond a reasonable doubt that the statements made to the

police were voluntary in nature.

Conclusion.

Under the facts and circumstances herein, the court concludes that the defendant's vehicle

was stopped but not parked when approached by the officer. The People have met their burden

to demonstrate the legality of police conduct in the first instance in approaching the vehicle in

question and inquiring as to the defendant's intentions and directing the defendant to leave the

scene. The defendant failed to meet his burden by a preponderance of the evidence that his

vehicle was moving when stopped by the officer which would have required the officer to

identify some violation of law before he could stop defendant's vehicle. Subsequent to said

approach the defendant lowered the driver's side window, which permitted the officer to detect

the scent of marijuana emanating from the vehicle. The defendant then admitted to smoking

marijuana. The defendant was thus properly ordered out of his car. The officer's observation of

various indicia of impairment exhibited by the defendant and the failure of the defendant to pass

any field sobriety tests provided the defendant with probable cause to arrest the defendant for

driving while ability impaired by drugs, VTL § 1192 (4).[FN5] Thus the defendant's motion to

suppress the evidence obtained by the officer as a result of the detention of the defendant's

vehicle is denied. The motion to suppress the statements made by the defendant is also denied.

This constitutes the decision and order of this court.

Dated: August 3, 2015.

Webster, New York

______________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice

Footnotes

Footnote 1:Id. at 985, 162,163.

Footnote 2:"Notably, however, the term probable cause' as used in Robinson is akin to DeBour level 3 reasonable suspicion' as opposed to DeBour level 4 probable cause to arrest.'" (Gertenzang, Handling the DWI Case in New York [2014-2015 Ed § 1:5 at 9])

Footnote 3:Preponderance has been described as follows: "Greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability. The word preponderance' means something more than weight'; it denotes a superiority of weight, or outweighing. The words are not synonymous, but substantially different. There is generally a " weight'" of evidence on each side in case of contested facts. But juries cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other side. with that evidence which, when fairly considered, produces the stronger impression, and has the greater weight, and is more convincing as to its truth when weighed against the evidence in opposition thereto. Preponderance of evidence may not be determined by the number of witnesses, but by the greater weight of all evidence, which does not necessarily mean the greater number of witnesses, but opportunity for knowledge, information possessed, and manner of testifying determines the weight of testimony." [All case citations omitted.] (Black's Law Dictionary 1344 [4th Ed 1968])

Footnote 4:Id.

Footnote 5:Tittensor at 784-785, 268