People v Vasquez

[*1] People v Vasquez 2018 NY Slip Op 50306(U) Decided on March 13, 2018 City Court Of Mount Vernon Armstrong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 13, 2018
City Court of Mount Vernon

The People of the State of New York, Plaintiff,

against

Ashley Vasquez, Defendant.



0945-17



Westchester County District Attorney

Mount Vernon Branch

Kenneth B. Saltzman, Esq.

Attorney for Defendant

Chase Bank Building

22 West First Street, Suite 622

Mt. Vernon, New York 10550
Adrian N. Armstrong, J.

A Dunaway/Huntley hearing was held in this matter on February 5, 2018, where defendant is charged with one count of Driving While Intoxicated, a violation of Vehicle and Traffic Law § 1192.3; one count of Obstructing Governmental Administration in the Second Degree, in violation of Penal Law § 195.05; and one count of Resisting Arrest, a violation of Penal Law § 205.30. After receiving testimony the Court finds as follows:

Findings of Fact:

At the hearing, P.O. Green of the Westchester County Police Department testified that on April 7, 2017 at approximately 7:00 a.m., while on duty he was dispatched to the Hutchinson River Parkway southbound lane, near the Lincoln Avenue exit on a report of a female being assaulted by a male. Officer Green stated that upon approaching the subject location he saw the defendant herein walking northbound in the southbound lane of the Hutchinson River Parkway, at which point he exited his vehicle and saw bloodstains on the defendant's clothing. Officer Green stated that he tried talking to the defendant who he believed at the time may have been the victim of the assault that he was called to investigate. He found the defendant uncooperative and she refused to answer his questions by stating to him "I don't want to speak to you" and she tried walking past him. The Officer testified that in response, he told her that she "had to speak to him", and for her safety, he grabbed her and placed her in his patrol car. While in the police car the defendant had visible injuries to her lip, and when she was asked what happened, she stated [*2]that her vehicle had a flat tire and she hit her face on the steering wheel. She further informed the officer that she called her boyfriend to help. Officer Green stated that while speaking to the defendant, he smelled alcohol on her breath, noticed that her eyes were glassy, and speech slurred. Officer Green also testified that he did in fact observe a disabled vehicle approximately two hundred feet north on the Hutchinson Parkway, from where he encountered the defendant.

The People also called Westchester County Police Officer Percopo, who testified that on the day in question she received a 911 call of a male pulling or pushing a female from a vehicle at the subject location. Upon approaching the location she observed a male walking on the exit ramp with blood on his sweatshirt. This individual identified himself as David Cartwright, and he informed Officer Percopo that something happened to his girlfriend's car and he was walking down the ramp to help. Officer Percopo stated that Officer Green transported the defendant to the location, just off the parkway where she and her partner were holding Mr. Cartwright. Officer Percopo stated that she began questioning the defendant while she was seated uncuffed, in the backseat of Officer Green's vehicle. Officer Percopo stated that during the questioning she smelled odor of alcohol on the defendant's breath, noticed defendant had bloodshot eyes and slurred speech. When asked what happened, the defendant allegedly told her that she had been drinking approximately two hours before her accident. Additionally, the defendant while seated in the back of the vehicle was found to be calling her boyfriend, Mr. Cartwright who was being questioned by Officer Green, and she was told on several occasions to put the phone away and not to call her boyfriend again or she would be arrested. In response, the defendant refused to stop calling her boyfriend and told Officer Percopo that she was going to call her lawyer and she then hid the phone in her back pocket. When told that she was being placed under arrest she refused to get out the vehicle, at which point she was forcefully removed from the vehicle and charged with Obstruction of Governmental Administration, Resisting Arrest, and Driving While Intoxicated.

Conclusions of Law

The People bear the burden of proving, beyond a reasonable doubt, and based on the totality of the circumstances, that a defendant's statements were voluntarily made (see People v Guilford, 21 NY3d 205, 208-209 [2013]; People v Witherspoon, 66 NY2d 973, 974 [1985]; People v Valerius, 31 NY2d 51, 53-55 [1972]; People v Huntley, 15 NY2d at 78; People v Lofrese, 15 Misc 3d 134[A], 2007 NY Slip Op 50726[U] [App Term, 9th & 10th Jud Dists 2007]). A defendant's oral or written statements are inadmissible at trial if they were made involuntarily. (CPL 60.45 [1].) A statement is involuntary if obtained either "[b]y any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement" or "[b]y a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him . . . in violation of such rights as the defendant may derive from the constitution of this state or of the United States." (CPL 60.45 [2] [a], [b] [ii].)

"It is a basic premise of the law of search and seizure that police-initiated intrusions must be justified at their inception." People v. Packer, 49 AD3d 184 (1st Dept. 2008). "The touchstone of any analysis of a governmental invasion of a citizen's person under the Fourth Amendment [*3]and the constitutional analogue of New York State is reasonableness" (People v Batista, 88 NY2d 650, 653 [1996]). Whether governmental action is reasonable will turn on the facts of each case and requires consideration of whether the police action at issue "was justified in its inception and whether ... it was reasonably related in scope to the circumstances which created the encounter" (People v Powell, 246 AD2d 366, 368 [1st Dept 1998], appeal dismissed 92 NY2d 886 [1998]). In People v. DeBour, 40 NY2d 210 (1976), the Court of Appeals set forth four levels of encounters initiated by the police. Level one, "a request for information", is permissible "when there is some objective credible reasons for that interference and not necessarily indicative of criminality." Id. at 223. Level two, "the common-law right of inquiry" is "activated by a founded suspicion that criminal activity is afoot." Id. Level three encompasses forcible and constructive stops and requires an officer to have "reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or a misdemeanor." Id. Level four provides that an arrest is justified when an officer has "probable cause to believe that person has committed a crime, or offense in his presence." Id. An individual is seized for constitutional purposes when his liberty to move has been significantly interrupted. People v. Cantor, 36 NY2d 106 (1975).

In People v Hollman (79 NY2d 181), the Court of Appeals clarified the difference between a request for information and the common-law right of inquiry. The Court stated that, as a general matter, "a request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination" (id. at 185). These questions need be supported only by an objective, credible reason not necessarily indicative of criminality (see id.) However, "[o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation, the officer is no longer merely seeking information. This has become a common-law inquiry that must be supported by a founded suspicion that criminality is afoot" (id.)

Based upon the testimony adduced at the suppression hearing, Police Officer Green had an objective, credible reason for approaching the defendant who was observed walking on the side of the parkway with blood on her clothing. Level one, allows an officer to approach an individual and inquire about basic, nonthreatening matters such as name, address and destination. People v Hollman, 79 NY2d 181 (1992). Once she refused to answer his questions, the officer's seizure of her by placing her in his patrol car raised the encounter to DeBour's level three. To do so legally, the Police Officer would need to have a reasonable suspicion that the defendant had committed, was committing or was about to commit a felony or misdemeanor. That defendant walked away, or by Police Officer Green, when he first encountered her on the side of the parkway, does not render the forcible seizure permissible. The right to request information during a Level one encounter authorizes the police to ask questions of defendant—and to follow defendant while attempting to engage her—but not to seize her in order to do so. Thus, defendant should have remained free to continue about her business without risk of forcible detention (see People v May, 81 NY2d 725 [1992] ["The police may not forcibly detain civilians in order to question them ... without a reasonable suspicion of criminal activity and once defendant indicated ... that he did not wish to speak with the officers, they should not have forced him to stop without legal grounds to do so. Any other rule would permit police seizures solely if circumstances [*4]existed presenting a potential for danger"). Under our settled DeBour jurisprudence, to elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior (People v Moore, 6 NY3d 496, 501 [200]). Contrary to the People's position, the officer's initial observation of the defendant being possibly intoxicated before he forcefully placed her in his patrol car is irrelevant, because he was unaware at that time, that she was driving a vehicle that had become disabled on the parkway. The 911 call he received merely informed him that a female was possibly being assaulted by a male near the subject location.

"Simply stated the proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual " (People v Stewart, 41 NY2d 65, 66 [1976]). In making this analysis, the court 'must weight the degree of intrusion entailed against the precipitating and attending circumstances " (People v Salaman, 71 NY2d 869, 870 [1988], " concentrat[ing] on whether the conduct of the police was reasonable at the time in view of the totality of the circumstances, for reasonableness is the touchstone by which police-citizen encounters are measured (People v Lomiller, 30 AD3d 276, 277 [1st Dept 2006]). In this case, the Court has no difficulty in concluding that the officer's request for information from defendant was justified, however, a refusal to cooperate alone does not justify a detention or seizure. As such, by forcibly placing the defendant in his patrol car after she refused to answer his questions seeking limited information, suppression of the defendant's statements to the police is warranted because the police lacked reasonable suspicion to justify the seizure of her person.

Accordingly, defendant's motion to suppress her statements made to the police after her unlawful seizure, is granted.

This constitutes the Decision and Order of this Court.

Dated: March 13, 2018

Mount Vernon, New York

__________________________

HON. ADRIAN N. ARMSTRONG

City Judge of Mount Vernon