People v Cahill
Annotate this CaseDecided on August 25, 2016
City Court of Poughkeepsie, Dutchess County
The People of the State of New York
against
Jeremy M. Cahill, Defendant.
CR-1326-16
Jessica Z. Segal Esq., Senior Assistant District Attorney
Dutchess County District Attorney
235 Main Street
Poughkeepsie, NY 12601
August Dumser, Esq., Senior Assistant Public Defender
Dutchess County Public Defender
22 Market Street
Poughkeepsie, NY 12601
Thomas J. O'Neill, J.
Defendant is charged with driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), a misdemeanor, unlicensed operation of a motor vehicle in violation of Vehicle and Traffic Law § 509(1), failure to dim headlights in violation of Vehicle and Traffic Law § 375(3), and insufficient turn in violation of Vehicle and Traffic Law § 1163(b) - all traffic infractions. Pursuant to a decision and order of this Court dated May 23, 2016, a Dunaway/Huntley hearing was ordered. The hearing was held on June 16, 2016. The hearing was continued to July 19, 2016. The People called one witness: Police Officer Frederick A. Yerks, a City of Poughkeepsie police officer. Based upon the evidence adduced at the hearing, the Court credits the testimony of Officer Yerks and makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
Police Officer Frederick A. Yerks testified that on March 7, 2016, at approximately 2:18 A.M., he was on duty doing routine patrol. He was traveling westbound on Main Street in the City of Poughkeepsie, State of New York, Dutchess County, when he observed a vehicle traveling eastbound on Main Street that failed to dim its high beams and affected his ability to see while driving. Officer Yerks turned his patrol car around and followed the vehicle, a brown 2012 Honda. The vehicle stopped at a green light for 2-3 seconds and signaled to turn right on South White Street. [*2]The vehicle continued on South White Street. It stopped at Church Street, and signaled to go right (westbound) on the one-way eastbound arterial - heading the wrong way. Officer Yerks activated his public announcement (P.A.) system and ordered the vehicle to take a left on Church Street - heading eastbound. Officer Yerks effectuated a traffic stop of the vehicle on the south side of Church Street.
Upon approaching the vehicle, Officer Yerks detected a smell of marijuana coming from inside the car. The defendant, Jeremy M. Cahill, was the driver of the vehicle and was identified in court by the officer. Defendant's eyes were glassy, his speech was slurred, and his movements were slow and lethargic. The defendant stated that he was coming from Noah's Ark and admitted to having had an alcoholic beverage earlier that day. After making these observations, Officer Yerks asked the defendant to step out of the vehicle. Upon exiting the vehicle, Officer Yerks asked the defendant to perform a series of field sobriety tests to assess the defendant's sobriety.Prior to performing the tests, defendant stated that he was taking medication for bipolar disorder. Defendant performed the HGN test, walk & turn test, one-legged stand test, and finger count test. Following the conclusion of the field sobriety tests, Officer Yerks concluded that defendant failed to successfully perform the tests and formed the opinion that defendant had been operating a motor vehicle while impaired or intoxicated and placed the defendant under arrest at approximately 2:31 A.M., on South White Street in the City of Poughkeepsie, New York for driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), unlicensed operation of a motor vehicle in violation of Vehicle and Traffic Law § 509(1), failure to dim headlights in violation of Vehicle and Traffic Law § 375(3), and insufficient turn in violation of Vehicle and Traffic Law § 1163(b).
A breath sample was taken from the defendant at the traffic stop, and the results came back negative for the presence of alcohol.
Defendant was brought back to headquarters at the City of Poughkeepsie Police Department, and was read his Miranda warnings at 3:19 A.M. Defendant refused to answer any questions. Approximately one (1) minute after having been read his Miranda warnings, with no questions having been asked of the defendant by the police, the defendant stated that he drank one (1) alcoholic beverage, smoked marijuana, and was taking medication for his bi-polar disorder.
Thereafter, defendant was transported to Mid-Hudson Regional Hospital after having consented to having a blood sample drawn. The blood sample draw tested for any alcohol and drugs present in the defendant's blood stream. The results of the blood sample were not available at the time of defendant's arrest on March 7, 2016. Several months later, on June 13, 2016, a blood sample report was generated which revealed that there was no alcohol in defendant's blood at the time of his arrest. However, the report indicated that the following drugs were present in defendant's blood stream:
Delta-9-tetrahydrocannabinol
11-nor-9-carboxy-delta-9-tetrahydrocannabinol
Alprazolam
Cocaine
The report was filed with this Court on June 23, 2016. During the hearing, on June 16, 2016, and again at the conclusion of the hearing on July 19, 2016, defendant renewed his motion to dismiss the charge of Vehicle and Traffic Law § 1192(3) based upon the lack of alcohol present in defendant's blood, evidence which was revealed for the first time at the suppression hearing. This [*3]evidence was not available at the time of defendant's arrest, nor was it available at the time defendant filed his omnibus motion.
CONCLUSIONS OF LAW
A. Motion to dismiss DWI charge:
The common law DWI statute provides that, "No person shall operate a motor vehicle while in an intoxicated condition." V.T.L. § 1192(3). A defendant cannot be prosecuted for driving while intoxicated in violation of Vehicle and Traffic Law 1192(3) while under the influence of drugs, or any other substance other than alcohol. People v. Litto, 8 NY3d 692 (2007)(holding "based upon the language, history and scheme of the statute, we conclude that the Legislature here intended to use intoxication' to refer to a disordered state of mind caused by alcohol, not by drugs."); see, People v. Grinberg, 4 Misc 3d 670, 673-80 (Kings County 2004)(providing a full review of the legislative history of the DWI statute). Here, defendant's initial motion to dismiss the accusatory instrument was denied via decision and order of this Court, dated May 23, 2016, based in part upon the fact that the accusatory instrument must be viewed in the light most favorable to the People. People v. Jennings, 69 NY2d 103 (1986). The decision on the motion found that the information filed by the People provided sufficient non-hearsay facts to support the charge of common law DWI, in that it alleged that the officer observed the defendant to have glassy eyes, impaired speech, impaired motor coordination, he admitted to drinking, and he failed the field sobriety tests administered to him - thereby setting forth sufficient indicia of intoxication or impairment to establish probable cause to arrest the defendant. People v. Granda-Vintmill (Javier), 41 Misc 3d 135(A)(App. Term 2d Dept. 2013); People v. Rundblad, 154 AD2d 746 (3d Dept. 1989); People v. Gristina 186 Misc 2d 877 (New York County 2001); People v. De Cruze, 36 Misc 3d 1217(A)(Kings County 2012). Not all classic symptoms of intoxication have to be exhibited to establish that a driver was incapable of operating the vehicle as a reasonable and prudent driver. People v. Pasquazi, 48 Misc 3d 1226(A) (New York County 2015); People v. Fiumara, 116 AD3d 421 (1st Dept. 2014)(no requirement that the information specifically allege erratic driving).
While it still remains that the elements of the offense were sufficiently alleged in the instant accusatory instrument to defeat the motion to dismiss - for it alleged sufficient non-hearsay allegations to support the charge of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3) [C.P.L. § 100.40], it was only at the suppression hearing that the parties learned of the results of the toxicology report, which brought to light evidence that no alcohol was found to exist in defendant's blood at the time of his arrest for which he could be charged, prosecuted, or convicted of Vehicle and Traffic Law § 1192(3). The toxicology report was dated June 13, 2016 - more than three (3) months after defendant's arrest and almost a month after the decision on the motion to dismiss - showing only drugs were present in the defendant's blood stream at the time of his arrest.
Criminal Procedure Law § 170.40 (1) gives this Court the authority to dismiss an information in the interest of justice if some compelling factor, consideration or circumstance clearly demonstrates that the conviction or prosecution of the defendant would constitute or result in injustice. C.P.L. § 170.40 (1). Among the factors the Court may consider is the evidence of guilt, whether admissible or inadmissible at trial. C.P.L.§ 170.40 (1)(a-j). In weighing the factors outlined in the statute, this Court finds that the lack of the presence of alcohol in defendant's blood sample, as demonstrated by the toxicology report warrants dismissal of the charge of common law driving [*4]while intoxicated in violation of Vehicle and Traffic Law § 1192 (3), in the interest of justice [C.P.L. § 170.40 (1)], for a driver cannot be prosecuted for driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3) while under the influence of drugs. People v. Litto, supra.
An order dismissing an accusatory instrument in the interest of justice may be issued upon motion of the people, court, or the defendant. C.P.L. § 170.40 (1). Here, the People have not so moved despite the results of the toxicology report which exonerate the defendant of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3). This failure to so move is in spite of the fact that the instant accusatory instrument alleges facts that the People, this Defendant, and Court now know cannot be proven, because the element of intoxication - an element of the offense defendant is charged - never existed at the time of his arrest, thereby making the accusatory instrument jurisdictionally defective and subject to dismissal. People v. Litto, 8 NY3d 692 (2007)(indictment charging defendant with DWI was legally insufficient where there was no evidence that defendant ingested any alcohol); see, People v. Casey, 95 NY2d 354 (2000)(accusatory instrument that fails to allege sufficient facts to establish every element of the offense is jurisdictionally defective); People v. Inserra, 2 Misc 3d 21(App. Term, 2d Dept. 2003)("The Court of Appeals . . . reaffirmed in Casey, Alejandro's holding . . . that complete absence of pleading of an element of a crime . . . is a jurisdictional defect"); People v. Cobb, 2 Misc 3d 237 (Queens County 2003).
The Court now turns to its conclusions of law on the hearing as it relates to the remaining charges before it: unlicensed operation of a motor vehicle in violation of Vehicle and Traffic Law § 509(1), failure to dim headlights in violation of Vehicle and Traffic Law § 375(3), and insufficient turn in violation of Vehicle and Traffic Law § 1163(b).
B. Dunaway/Huntley hearing:
During a suppression hearing, the People have the initial burden to come forward with evidence to show the legality of the police conduct. See, People v. DiStefano, 38 NY2d 640 (1976); People v. Pettinato, 69 NY2d 653 (1986). This burden cannot be satisfied with conclusory statements or assurances that the police conduct was proper, but only with an adequate demonstration of the facts. See, People v. Dodt, 61 NY2d 408 (1984); People v. Bouten, 50 NY2d 130 (1980). The People are not required at a suppression hearing to present "competent evidence" which would be "legally sufficient" to support an indictment, but are required instead to present "only apparently reliable evidence or information "that establishes "that it was reasonably likely" that the defendant committed the crime. See, People v. Hetrick, 80 NY2d 344 (1992). The defendant bears the ultimate burden of proving by a preponderance of the evidence that tangible evidence seized was illegally obtained and should not be used against him. See, People v. Hetrick, 80 NY2d 344 (1992).
Here, the stop by Officer Yerks was proper and the evidence obtained subsequent to the stop is admissible at trial. With respect to the admissibility of the defendant's statements made before and after he was read Miranda warning, the People have the burden of proving that the defendant's statements were voluntary. Here, the People have met their burden. A defendant who has been temporarily detained pursuant to a routine traffic stop is not in custody for Miranda purposes, and a reasonable initial interrogation during such a stop does not require Miranda warnings. People v. Myers, 1 AD3d 382 (2nd Dept. 2003). Officer Yerk's temporary roadside detention of the defendant, after stopping the defendant's vehicle for a traffic infraction, was permissible and non-custodial in [*5]nature and the Officer was not required to administer Miranda warnings before conducting his initial roadside investigation.
Moreover, there having been nothing to detract from Officer Yerk's testimony, the statements made by the defendant after having been read his Miranda warnings are admissible too, as having been made with genuine spontaneity and not as the result of "inducement, provocation, encouragement, or acquiescence." See, People v. Rivers, 56 NY3d 476 (1982); People v. Kern, 149 AD2d 187 (2d Dept. 1989)(officer need not interrupt and warn or advise a defendant who wishes to make a spontaneous statement).
Based upon all of the foregoing, this Court finds that the People have met their burden of proof in establishing the legality of the police conduct in effectuating a traffic stop in this case and that the vehicle stop was not an unconstitutional seizure of the defendant. The People have further demonstrated the encounter was not coercive, that defendant's statements were made spontaneously, and that the traffic violations, together with the field sobriety observations conducted by the Officer, and defendant's statements provided probable cause to arrest defendant.
THEREFORE, based upon all of the foregoing, it is now
ORDERED, that the accusatory instrument charging Defendant with driving while intoxicated in violation of Vehicle and Traffic Law 1192(3) is DISMISSED; and it is further
ORDERED, that defendant's motion to suppress evidence is DENIED.[FN1]
This constitutes the decision and order of the Court.
SO ORDERED.
Dated:August 25, 2016______________________________
Poughkeepsie, New YorkTHOMAS J. O'NEILL
CITY COURT JUDGE
August 25, 2016____________________________
FootnotesFootnote 1:The relevance of such evidence being admitted shall be determined at trial.
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