People v Miller

[*1] People v Miller 2016 NY Slip Op 51268(U) Decided on September 8, 2016 Justice Court Of The Town Of Lockport, Niagara County Tilney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2016
Justice Court of the Town of Lockport, Niagara County

The People of the State of New York, Plaintiff,

against

Jeanette M. Miller, Defendant.



16070216



For the People:

Bradley D. Marble, Town of Lockport Prosecutor

Defendant Appearing Pro se
Leonard G. Tilney Jr., J.

PROCEDURAL POSTURE OF CASE

The Defendant, Jeanette M. Miller (Miller) was charged with Unlawful Possession of Marihuana on July 10, 2016. She was issued an appearance ticket returnable for a July 21, 2016 arraignment. Miller entered a plea of not guilty, requested to represent herself pro se, made an oral motion to dismiss in the interest of justice (which was procedurally denied without prejudice to be put in writing), and the matter was scheduled for conference with the Town Prosecutor on August 2, 2016. At that time the Town Prosecutor made a motion to adjourn the case in contemplation of dismissal pursuant to C.P.L. 170.56. A closer reading of C.P.L. 170.56 does not allow the prosecution to make such a motion. In any event, Miller objected, refused to accept the ACD or make the motion herself and filed a written motion to dismiss in the Furtherance of Justice. The matter was adjourned to August 16, 2016 for the Town Prosecutor to respond and oral arguments were scheduled for September 6, 2016. The Court reserved decision and now issues the same.

FACTS

On July 10, 2016 Miller was operating her motor vehicle on Saunders Settlement Road in the Town of Lockport when she struck and injured a bird. Because she is a volunteer for New York State as a D.E.C. licensed Wildlife Rehabilitator she knew it was imperative to remove the injured animal from the road so that other birds or scavengers, who might approach the injured bird, would not get hit or cause an accident. Accordingly, she stopped in the middle of the road, put on her four-way emergency flashers and picked up the injured bird. Shortly thereafter New York State Trooper Daniel J. Alaimo happened on the scene, pulled behind Miller and activated his overhead lights. As he approached her car he could smell a strong odor of marihuana coming [*2]from the vehicle. He asked her where the marihuana was located in the vehicle. The Defendant broke down, began to cry, and pursuant to a C.P.L. 710.30 notice, admitted:

"I only stopped because I hit a bird. I am certified to rehabilitate wildlife. I wanted to rehabilitate the bird.There are some roaches in my ash tray.I only smoked a little marihuana in the morning.That's the only marihuana I have.I have less than an ounce in my glasses (sic) case in my purse."

POSITION OF THE PARTIES

The Defendant, in an excellent pro se application, has outlined and given reasons for a dismissal in the Furtherance of Justice, for no probable cause to stop her motor vehicle and improper search of her motor vehicle without her consent. She also challenges her statement given to the police as "fruit of the poisonous tree" as no Miranda warnings were given. Finally, she attacks the sufficiency of the accusatory instrument because no laboratory tests identifying the marihuana have been filed as yet. This is her first arrest of any kind.

The People maintain there was a sufficient basis for the stop and ultimate search of the Defendant's vehicle. Certainly, sufficient probable cause exists. They oppose a dismissal in the interest of justice.

STATUTES A. Penal Law Section 221.05"§221.05 Unlawful possession of marihuanaA person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However " (not applicable in this case).B. C.P.L. 170.40"§170.40 Motion to dismiss information, simplified traffic information, prosecutor's information or misdemeanor complaint; in furtherance of justice1. An information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof, may be dismissed in the interest of justice, as provided in paragraph (g) of subdivision one of section 170.30 when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (f) of said subdivision one of section 170.30, such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:(a) the seriousness and circumstances of the offense;(b) the extent of harm caused by the offense;(c) the evidence of guilt, whether admissible or inadmissible at trial;(d) the history, character and condition of the defendant;(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;(g) the impact of a dismissal on the safety or welfare of the community;(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.2. Any order dismissing an accusatory instrument specified in subdivision one in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.C. C.P.L. 170.56"§170.56 Adjournment in contemplation of dismissal in cases involving marihuana1. Upon or after arraignment in a local criminal court upon an information, a prosecutor's information or a misdemeanor complaint, where the sole remaining count or counts charge a violation or violations of section 221.05, 221.10, 221.15, 221.35 or 221.40 of the penal law and before the entry of a plea of guilty thereto or commencement of a trial thereof, the court, upon motion of a defendant, may order that all proceedings be suspended and the action adjourned in contemplation of dismissal, or upon a finding that adjournment would not be necessary or appropriate and the setting forth in the record of the reasons for such findings, may dismiss in furtherance of justice the accusatory instrument; provided (not applicable in this case).2. 3. 4. Upon the granting of an order pursuant to subdivision three, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution."

ISSUES PRESENTED 1. Did the New York State Police have probable cause to stop Miller on a public highway?2. Were the New York State Police required to Mirandize Miller prior to the officer's inquiring into the circumstances?3. Did the New York State Police have probable cause to search Miller's motor vehicle?4. Does the absence of a formal lab report make the long form Criminal Complaint defective?5. Is Miller entitled to a dismissal of the criminal complaint in the Furtherance of Justice?

OPINION OF THE COURT 1. Probable Cause to "Stop"

Approaching an occupied stationary vehicle is a minimal intrusion which is not the equivalent of a stop. See, People v. Harrison, 57 NY2d 470, (1982). This situation is analogous to approaching a citizen on the street to request information and therefore the courts use the same four-tiered analysis set forth in People v. DeBour, 40 NY2d 210 at 223 (1976) to justify the conduct of the police. See, People v. Ocasio, 85 NY2d 982 (1995); People v. Harrison, supra.

When Trooper Alaimo approached the vehicle and spoke to the defendant, her emergency flashers were on, and he was engaged in a public safety function making sure that the defendant was safe. The trooper's subsequent act of inquiry to see if defendant was in distress was justified under the "emergency doctrine." See, People v. Mitchell, 39 NY2d 173 (1976), cert. denied sub nom. Mitchell v. New York, 426 U.S. 953 (1976). Had the Trooper not stopped, he would have been greatly criticized for not doing so.

2. Voluntariness of Statement

Admissibility of Defendant's statements regarding possession of marihuana is dependent upon if it was voluntarily given to Trooper Alaimo. People v. Huntley, 15 NY2d 72 (1965), requires the People to establish, beyond a reasonable doubt, that a statement was voluntarily made. Miranda vs. Arizona, 384 US 436 (1966), requires custodial interrogation for involuntariness of the statement. Both cases require defendant to be under arrest and questions being asked to illicit an incriminating response. Trooper Alaimo observed that the Defendant stopped in an emergency situation. He noticed the smell of marihuana and Defendant admitted possession. Trooper Alaimo's actions were simply a temporary roadside detention for the purpose of investigating a motorist who had stopped and were not custodial in nature. See e.g. People vs. Milo, 300 AD2d 680 (2002); People v. McGreal, 190 AD2d 869 (1993); People v. Mathis, 136 AD2d 746 (1988).

Trooper Alaimo made no threats of physical force, nor applied any undue pressure, nor made any promises to the defendant to make her statements involuntary. [CPL § 60.45(2)].

3. Search of Car Without Defendant's Consent

Most if not all of the cases on automobile search issues are founded factually on a determination of a proper stop of the motor vehicle. This Court has already determined herein above that there was no "stop" of the defendant's automobile. There is no underlying ticket issue for a traffic offense. Rather, Trooper Alaimo was approaching an emergency situation.

The touchstone of Fourth Amendment analysis has always been the reasonableness of the search or seizure in issue (see Illinois vs. Rodriguez, 497 U.S. 177, 185-186 (1990); Pennsylvania vs. Mimms, 434, U.S. 106, 108-109 (1977); People vs. Hall, 10 NY3d 303, 308, cert. denied 555 U.S. 938 (2008); People vs. Batista, 88 NY2d 650, 653 (1996).

The validity of police conduct is not measured by the subjective intentions of the law enforcement officers. [See Brigham City, Utah vs. Stuart, 547 U.S. 398 (2006); People vs. Cooper, 38 AD3d 678 (2007); People vs. Bandera, 204 AD2d 340, lv. denied 83 NY2d 1002 (1994)]. Rather, it is measured by the objective circumstances, determined pursuant to a reasonable person standard [See People vs. Hicks, 68 NY2d 234, 240 (1986); see also People vs. Ellerbe, 265 AD2d 569, 570, lv. denied 94 NY2d 903 (1999); People vs. Jones, 172 AD2d 265, 266, lv. denied 78 NY2d 923 (1991); People vs. Hunt, 155 AD2d 957, 958, lv. denied 75 NY2d 814 (1989)].

The seminal case which has gone back and forth between the United States Supreme Court [New York vs. Belton, 453 U.S. 454 (1981)] and our Court of Appeals is People vs. Belton, 55 NY2d 49 (1982), which recognizes a privacy interest in a motor vehicle deserving constitutional protection. In those cases both the Federal Court and the State Court held the search of defendant's jacket was justified under the Federal and State Constitutions. Federally because the Fourth Amendment was not violated and under a state law automobile exception to [*3]Section 12 of Article I of our Constitution.[FN1] Factually, Belton is close to this case. After the car was lawfully stopped, the arresting officer smelled marihuana and saw a plastic baggie on the floor. He then searched the defendant's jacket which was in the back seat out of defendant's reach and found cocaine which was not suppressed. The proper inquiry in assessing the propriety of a search of an automobile and its contents is whether the circumstances gave the police probable cause to believe that the car contained contraband, evidence of a crime, a weapon or some means of escape. People vs. Blasich, 73 NY2d 673 (1989).

Here, the Trooper smelled marihuana and based on the conversation he had with the defendant the search of the car was justified. In any event, the only "fruit" (contraband) seized was the marihuana in the Defendant's purse which she freely admitted was hers. 4. Sufficiency of Pleading

An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL 100.15, (2) sets forth allegations which "provide reasonable cause to believe the defendant committed the offence charged" and (3) contains non-hearsay allegations which "establish, if true, every element of the offence charged and the defendant's commission thereof." CPL §100.40(1); People v. Alejandro, 70 NY2d 133 (1987). This third requirement is also known as the "prima facie case" requirement. The Alejandro Court further held that failure to comply with the prima facie case requirement is a jurisdictional defect. This Court notes that the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, 92 NY2d 677, (1999). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000). Here, the accusatory instrument does so.

5. Interests of Justice

C.P.L. Section 170.56 was specifically enacted by the New York State Legislature to deal with adjournment in contemplation of dismissal for marihuana charges below felony grade. Its purpose was to give first time marihuana defendants an opportunity to be relieved of a drug possession offense [People vs. Mann, 83 Misc 2d 442 (1975)]. It is far different from an ACD under C.P.L. Section 170.55 in that only the defendant can make the motion and no consent is needed from the People on the first offense [People vs. Ford, 104 Misc 2d 458 (1980)].

Here, the defendant pursuant to C.P.L. 170.40 made a motion commonly referred to as a Clayton motion (People vs. Clayton, 41 AD2d 204 [1973]). Such a motion should be granted only where a defendant has demonstrated by a preponderance of the credible evidence that a compelling reason exists to warrant dismissal in the interest of justice. If the defendant fails to meet this burden, the court may summarily deny the motion (People vs. Schlessel, 104 AD2d 501 [1984]). As noted by the court in People vs. Gragert (1 Misc 3d 646, 648 [2003]):

"When deciding a motion to dismiss in the interest of justice, it is not necessary to engage in a point-by-point catechistic' discussion of all 10 factors listed under Criminal Procedure Law §170.40(1). (Rickert, 58 NY2d at 128.) Instead, the court is required to consider the factors individually and collectively' in making a value judgment that is [*4]based upon striking a sensitive balance between the interests of the individual and those of the state. (People vs. Harmon, 181 AD2d 34, 35 [1st Dept. 1992].) In so doing, the court must be mindful that its power to grant the relief is neither absolute nor uncontrolled (See People vs. Wingard, 33 NY2d 192, 196 [1973]), and that such power should be exercised sparingly.' (People vs. Howard, 151 AD2d 253, 256 [1989], lv denied 74 NY2d 811 [1989].)"

The Court AGREES with the Defendant in her position under C.P.L. §170.40 regarding the following statutory paragraphs:

(a) Seriousness of offense

A first time violation of Penal Law Section 221.05 is not a criminal conviction and only punishable by a maximum fine of $100.00 and a $125.00 surcharge in the event the Defendant does not move for an Adjournment in Contemplation of Dismissal.

(d) History, character and condition of defendant

Defendant has no criminal history, is well educated with a Master's Degree, has professional certifications in Early Childhood and Childhood Education and is currently employed as a substitute school teacher. She also volunteers as a licensed New York State Wildlife Rehabilitator. She has submitted numerous letters of recommendation.

(g) Impact of dismissal on community

The community will little know nor long remember what happens in a marihuana case.

(h) Impact of dismissal on public

(i) No Impact - In reality an ACD will dismiss the charges pursuant to legislative fiat. The purpose of the statute (C.P.L. 170.56) is to excuse the first marihuana offense but to make stiffer penalties if the Defendant does not learn from prior experience.

(ii) Impact - Is the Court making a "special" exception for this defendant as the Court handles hundreds of these types of cases annually?

The Court DISAGREES with Defendant in her position under Penal Law Section 170.40 regarding the following statutory paragraphs:

(b) Extent of harm caused by offense

The Defendant does not understand that marihuana could cause harm to her physically and mentally and to the public in general.[FN2]

(c) Evidence of guilt

For reasons stated above Defendant's statement is admissible and the complaint is sufficient.

(e) Misconduct of law enforcement personnel

For reasons stated above Trooper Alaimo acted appropriately with the search of defendant's car.

(f) Purpose of authorized sentence

Because the legislature has mandated an ACD on the first offense (given at the request of the Defendant) which makes the arrest a nullity, there is no sentence, only a dismissal.

(i) Attitude of complainant or victim to dismissal

The Defendant in her motion thinks she is the victim as she "did not feel what was [*5]happening was at all justified." She is neither complainant nor victim.

(j) Judgment of conviction would serve no useful purpose

On the first offense there is "no conviction" even if defendant was found "guilty" at trial.

The bottom line here is Miller would not accept the statutory dismissal of this charge because she could not have anything pending while she applied for a certification to teach. Miller would have this Court exercise its discretion and dismiss the charge for someone, who freely admitted she smoked a little marihuana in the morning, had some roaches in her ash tray and less than an ounce of marijuana hidden in her glass case in her purse, so she would be able to enter our classrooms to teach our children.

This Court does not deem this case reaches to the level to exercise its extraordinary interest of justice discretion to dismiss. Accordingly, the Defendant's motion is in all respects denied. The defendant may make a motion to dismiss via an ACD pursuant to C.P.L. Section 170.56, which the Court would be mandated to accept, otherwise the case is to be scheduled for trial.

Dated: September 8, 2016

Lockport, New York

Leonard G. Tilney, Jr.

Lockport Town Justice Footnotes

Footnote 1:The Courts have backed away somewhat on the search issue under different facts situations. See Arizona vs. Gant, 129 S. Ct. 1710 (2009), People vs. Banks, 85 NY2d 558 (1995), and more recently in Rodriguez vs. United States, 135 S. Ct. 1609 (2015).

Footnote 2:As of August 11, 2016 the Federal DEA reaffirmed marihuana as a Schedule 1 Drug comparing the same to heroin or LSD. Under Federal law, which is not being enforced by the U.S. Attorney, possession of marihuana is a crime.