People v Kraten

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[*1] People v Kraten 2021 NY Slip Op 50540(U) Decided on June 11, 2021 Justice Court Of The 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2021
Justice Court of the Town of Webster, Monroe County

The People of the State of New York


Michael W. Kraten, Defendant.


Sandra Doorley, District Attorney, Monroe County (John Marsella, of Counsel), for plaintiff.

James L. Riotto II, Esq. (Christopher Mona, of Counsel), for defendant
Thomas J. DiSalvo, J.

The defendant was charged with insufficient turn signal - less than 100', (VTL § 1163 [b])[FN1] , common law driving while intoxicated, (VTL § 1192 [3]) and per se driving while intoxicated (VTL§ 1192 [2]) on December 18, 2019 at approximately 2:19 A.M. Defense counsel submitted omnibus motions requesting, among other things, preclusion of statements purportedly made by the defendant and not contained in the People's CPL § 710.30 notice and suppression of all evidence seized or discovered as a result of the arrest pursuant to CPL § 710.20. The latter motion effectively is a request for a probable cause and a Huntley hearing. Those hearings were conducted on April 30, 2021. At that hearing the People called two witnesses, i.e. Sergeant Michael Wilder and Officer Ashley Lass, both of the Webster Police Department.

Facts of the Case.

Probable Cause Hearing. Sergeant Wilder was the first to testify. He stated that on the date and time in question he was at the Webster Police Department when he received a phone call on his personal cell phone from his friend, Sam Weech, who was an off duty Rochester Police Officer. He stated that said officer advised him that he was following a reckless driver eastbound on New York State Route 104 approaching Hard Road in the Town of Webster. As a result, Sergeant Wilder, who was in his police car at the time of the call, left the town hall campus and headed for Route 104 in search of said vehicle. He further was informed that the [*2]subject vehicle had a New York State license plate bearing number 60659JC.[FN2] The friend told Sergeant Wilder that the vehicle had turned off Route 104 and was heading northbound. The Sergeant caught up that vehicle as it made a left hand turn from Webster Road on to Millcreek Run. As he followed the said vehicle he observed the defendant make a right hand turn on to Holley Road.However, he testified that the right hand turn was made without the benefit of a turn signal. He continued to follow the vehicle as it made another right hand turn on to Willow Lane. The officer stated that the driver failed to signal said turn.At that time the officer turned on his emergency lights in an effort to make a traffic stop. However, the vehicle continued onto Cloverwood Drive before coming to a stop.

The officer then approached the driver's side of the vehicle. He observed that the driver was the only occupant. The driver produced a New York State driver license which identified the driver as the defendant herein. In response to the officer's questions, the defendant stated that he was coming from a friend's house and was headed home on the said Cloverwood Drive. The defendant further responded that he had previously consumed a glass of wine and a Smirnoff. Sergeant Wilder testified that while speaking with the defendant he observed various indicia of intoxication including mumbled speech, odor of alcohol, glassy and bloodshot eyes. The officer then asked for Officer Lass to come to the scene to continue the investigation. Officer Lass did in fact arrive and did take over the investigation. However before leaving, Sergeant Wilder issued a uniform traffic information charging the defendant with the said violation of VTL § 1163 (b) to wit: "insufficient turn signal - less than 100".

Officer Ashley Lass then was called to the stand. She testified to approaching the driver's side of the vehicle in order to speak to the defendant. The officer then proceeded to state that she observed the defendant exhibit various indicia of intoxication. In response to a question, the defendant again stated that he had consumed a glass of wine and a Smirnoff. The officer then directed the defendant to exit his vehicle. Upon complying with that demand, the officer indicated that she observed the defendant having poor balance and was unsteady on his feet as he proceeded to the front of his vehicle.

The defendant agreed to perform various roadside tests. The officer testified to having the defendant perform the standardized field sobriety tests, i.e. the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test. In addition, the defendant was asked to and did agree to submit to a preliminary breath screening test. Based on the performance of the defendant on the standardized field sobriety tests and the preliminary breath test the defendant was placed under arrest and transported to the Webster Police Department.

Huntley Hearing. At the Webster Police Department the defendant was read his Miranda warnings by Officer Lass. A copy of her Miranda warnings card was entered into evidence without objection. During the processing, the defendant made various spontaneous statements and asked various questions of the officer. There was no testimony of any questions of the defendant by Officer Lass or of any other officer relative to the incident in question at the police department.The statements of the defendant as set out in the CPL § 710.30 Notice were made [*3]during the initial investigatory stage of the traffic stop when the defendant, although not free to leave, was not under arrest.

Questions Presented.

Does the fellow officer rule apply to the facts of this Case?

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

Was the second officer justified in approaching the defendant's vehicle and to make enquiries of the defendant?

Did the second officer have probable cause to detain and to direct the defendant to exit the vehicle?

Did the second officer have probable cause to make the arrest?

Legal Analysis.

The Call.As previously stated Sergeant Wilder became involved in this matter because of a phone call from an off-duty Rochester Police Officer about a reckless driver on Route 104. Neither the testimony of Sergeant Wilder nor his written Addendum provided to the court with the various accusatory instruments state what exactly the driver of the vehicle in question was doing as it proceeded on New York State Route 104 to be considered as being reckless. Vehicle and Traffic Law § 1212 states that

"Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor."

Nevertheless, "Information received from another police officer is presumptively reliable ...." (People v. Ketcham, 93 NY2d 416,420, 690 N.Y.S.2d 874,877 [1999]). Certainly Sergeant Wilder had an obligation at that point to investigate the situation, which he did in setting out tofind the alleged reckless driver.

The Stop. Sergeant Wilder caught up with the defendant's vehicle on Webster Road as the defendant turned onto Millcreek Run. He continued to follow it to the intersection of Millcreek Run and Holley Road. It was at that time that the officer stated he observed the defendant make a right hand turn onto Holley Road without the benefit of a turn signal. The pursuit continued as the defendant approached the intersection of Holley Road and Willow Lane, whereupon the officer testified that the defendant made another right hand turn without signaling the turn on to Willow Lane. It was at that time that the officer engaged his emergency lights in an attempt to stop the vehicle, which continued to proceed until it stopped after making a left hand turn onto Cloverwood Drive. The law relative to the stopping of a motor vehicle by a police officer was succinctly set out in a decision by a fellow town justice of a neighboring court wherein he states:

"It is well settled that the stop of an automobile by police constitutes a 'seizure' for purposes of the Fourth Amendment (People v. Spencer, 84 NY2d 749, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995]; People v. May, 81 NY2d 725, 593 N.Y.S.2d 760, 609 N.E.2d 113 [1992] ). Police stops of automobiles are permissible where the police have probable cause to believe that the driver of an automobile has committed a traffic violation (People v. Guthrie, 25 NY3d 130, 8 N.Y.S.3d 237, 30 N.E.3d 880 [2015]; People v. Robinson, 97 NY2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ), or where there exists reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime (Spencer at 752, 753, 622 N.Y.S.2d 483, 646 N.E.2d 785)." (People v. Fenti, 57 Misc 3d 471,475, 62 N.Y.S.3d 887, 890 [Mulley, J, Penfield J. Ct. 2017]).

In this case Sergeant Wilder testified to observing the defendant make two right hand turns without signaling said turns in violation of VTL § 1163 (b), which resulted in his issuing thedefendant a uniform traffic information charging the defendant with said violation.

The Handoff.As previously stated, prior to issuing the said ticket to the defendant, Sergeant Wilder contacted Officer Ashley Lass to continue the investigation. That officer soon arrived at the scene of the stop to relieve the sergeant, who advised Officer Lass that the driver of the stopped vehicle may have been drinking. Based on the officer's own observations of the defendant and roadside tests she performed, she arrested the defendant for both common law and per se driving while intoxicated. The continued detaining of the defendant and his eventual arrest was prefaced by the information received from a fellow officer.

"Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting " 'upon the direction of or as a result of communication with' " a fellow officer or another police agency in possession of information sufficient to constitute probable cause for the arrest (People v. Mims, 88 NY2d 99, 113, 643 N.Y.S.2d 502, 666 N.E.2d 207; *420 People v. Maldonado, 86 NY2d 631, 635—636, 635 N.Y.S.2d 155, 658 N.E.2d 1028; People v. Landy, 59 NY2d 369, 375, 465 N.Y.S.2d 857, 452 N.E.2d 1185)."[FN3]

In taking over the investigation Officer Lass was relying on information she received from a fellow officer, namely her supervisor, the aforementioned Sergeant Wilder. As previously stated she was told by her fellow officer that the driver may have been drinking.[FN4] Officer Lass was at that time approaching a legally stopped vehicle not a parked vehicle. A parked vehicle is defined as follows: " Means the standing of a vehicle, whether occupied or not, [*4]otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers."[FN5] In approaching the legally stopped vehicle the officer was conducting a level 1 inquiry.[FN6] It has been held that

"... the justification required for a level I inquiry, which, to reiterate, is 'an objective, credible reason not necessarily indicative of criminality' (Ocasio, 85 NY2d at 985, 629 N.Y.S.2d 161, 652 N.E.2d 907). Thus, a level I inquiry is properly predicated on observed circumstances that are susceptible to either an innocent explanation or an explanation involving illegality, as is demonstrated by the various situations that have been found to have justified level I inquiries in prior cases. A police officer observing such circumstances is entitled to ask the person involved in the situation 'basic, nonthreatening questions regarding, for instance, identity, address or destination' (Ocasio, 85 NY2d at 985, 629 N.Y.S.2d 161, 652 N.E.2d 907, citing Hollman, 79 NY2d at 185, 191, 581 N.Y.S.2d 619, 590 N.E.2d 204) for the purpose of determining whether there is any need for further investigation or action." (People v. Thomas, 19 AD3d 32,38, 792 N.Y.S.2d 472,477-478 [1st Dept 2005])

However, the circumstances of the stop escalated to a level two common law right of inquiry based on Officer Lass' observation that the driver was exhibiting various indicia of intoxication. Certainly inquiring of the defendant as to whether he had consumed any alcoholic beverages had to put the defendant on notice that the officer was investigating possible criminal behavior of the defendant.

"In People v. Hollman, 79 NY2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204, 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, 581 N.Y.S.2d 619, 590 N.E.2d 204). These questions need be [*5]supported only by an objective, credible reason not necessarily indicative of criminality ...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....'" (People v. Karagoz, 143 AD3d 912,914, 39 N.Y.S.3d 217,219 [2d Dept 2016])

As a result of her investigation to that point, Officer Lass was justified in asking the second level questions of the defendant.

Furthermore the officer was then authorized to direct the defendant to exit his vehicle.

"In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car (see People v. Robinson, 74 NY2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 [1989], citing Michigan v. Long, 463 U.S. 1032, 1047—1048, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 [1983]; Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 [1977] ). (People v. Garcia, 20 NY3d 317,321, 959 N.Y.S.2d 464,466[2012])

The Arrest. Subsequent to her conversations with the defendant, the performance of the roadside tests, including the roadside breath test, the officer arrested the defendant for driving while intoxicated. The standard for probable cause is set out in CPL § 70.10 (2), which states as follows:

"'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."

Finally, "The CPL uses the phrase 'reasonable cause' in lieu of the phrase 'probable cause'.... However, it is well settled that '[r]easonable cause means probable cause'"[FN7]


Based on the presumptive reliability of the information Officer Lass received from a fellow officer she was justified in continuing to approach and enquire of the defendant in order to continue her investigation.That investigation provided the officer with her own independent [*6]observations of the defendant that gave her reasonable suspicion to detain the defendant and to direct him to exit his vehicle and to request that he perform the said roadside tests. It was those initial observations of the defendant and the defendant's performance on the roadside tests that gave the officer the probable cause to arrest the defendant. Therefore the defendant's motions to suppress evidence seized or discovered as a result of the arrest of the defendant, including the statements set out in the People's CPL § 710.30 notice is hereby denied. Defendant's motion to preclude the use of any statements of the defendant not included it the said CPL § 710.30 Notice is hereby denied, since such a motion was waived by the defendant's motion to suppress said statements. It has long been held that

"... an application to suppress a statement constitutes a waiver of any preclusion argument, even where a defendant makes that application as an alternative to preclusion (see e.g., People v. Kirkland, 89 NY2d 903, 653 N.Y.S.2d 256, 675 N.E.2d 1208 [1996]; People v. Merrill, 87 NY2d 948, 641 N.Y.S.2d 587, 664 N.E.2d 498 [1996]; see also **599 People v. Garcia, 290 AD2d 299, 735 N.Y.S.2d 545 [1st Dept.2002]; CPL 710.30[2] )." (People v. Cadet, 27 Misc 3d 502,505, 900 N.Y.S.2d 596,598-599 [2010])[FN8]

The court continues to reserve on defendant's motion relative any alleged failure of the People to comply with their discovery obligations under CPL § 245.20, pending receipt from the defendant of a specific written list of any such breaches of said obligations. This constitutes the decision and order of this court.

Dated: June 11, 2021

Webster, New York


Hon. Thomas J. DiSalvo

Webster Town Justice. Footnotes

Footnote 1:The sub-section states as follows: "A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning."

Footnote 2:The information regarding the license plate was not elicited at the hearing, but appears in a Webster Police Department Addendum Report signed by Sergeant Wilder. Said report was attached to the CPL 710.30 Notice and Supporting Deposition.

Footnote 3:Ketcham at 419-420, 877.

Footnote 4:The court takes judicial notice of the Webster Police Addendum Report signed by both Officer Lass and Sergeant Wilder, as supervisor, wherein Officer Lass states "Sgt. Wilder hand me the NYSDL and advised that the male may have been drinking...."

Footnote 5:(VTL § 129)

Footnote 6:"'In People v. De Bour, 40 NY2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity. The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality. The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion. The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime. The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime' (People v. Clermont, 133 AD3d 612, 613, 20 N.Y.S.3d 85 [citations omitted]; see People v. De Bour, 40 NY2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562)."

Footnote 7:(Gerstenzang, Handling the DWI Case in New York § 1:30 at 49 [2019-2020 ed])

Footnote 8:See also CPL § 710.30 (2) which states " In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible as prescribed in subdivision two of section 710.70."

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