Opinion
No. 2015NA008100.
07-12-2016
The PEOPLE of the State of New York, Plaintiff v. Ching T. CHIANG, Defendant.
Madeline Singas, Nassau County District Attorney. Brunetti & Ascione, LLP, Attorneys for Defendant.
Madeline Singas, Nassau County District Attorney.
Brunetti & Ascione, LLP, Attorneys for Defendant.
SCOTT H. SILLER, J.
DECISION AFTER HEARING
The Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree ( Penal Law § 220.03 ), Driving While Ability Impaired By Drugs (VTL § 1192.4) and Failing to Stop at a Stop Sign ( VTL § 1172[a] ), in connection with having allegedly operated a motor vehicle on April 20, 2015, at or about 11:05 p.m., in the vicinity of Shelter Rock Road and Wimbledon Drive, North Hills, Nassau County, New York.
On June 20, 2016, an Ingle/Dunaway/Mapp/Huntley hearing was held to determine the lawfulness of the stop and seizure of the Defendant, probable cause for the Defendant's arrest, suppression of all tangible evidence seized from the Defendant and suppression of statements allegedly made by the Defendant (see People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975) ; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) ; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).
The court heard testimony from Police Officers Michael Palazzo, Giuseppe Palumbo and Gregory Nicholson. Based upon the credible evidence adduced at the hearing, the court makes the following findings of fact and conclusions of law.
Findings of Fact
On April 20, 2015, Police Officer Michael Palazzo of the Nassau County Police Department was on routine patrol in a marked police vehicle. At approximately 11:05 p.m. the officer was located in the vicinity of Shelter Rock Road and Wimbeldon Drive, North Hills, Nassau County, New York, when he observed a Lexus exiting the Northern State Parkway eastbound ramp onto Shelter Rock Road. The defendant went past a stop sign and stopped on an angle in the roadway, across the lanes of traffic. Officer Palazzo drove behind the vehicle, activated his lights and sirens and had the driver pull his vehicle over to the shoulder of the road.
After Officer Palazzo initiated the stop he approached the drivers side of the vehicle where he noticed the defendant to have glassy, bloodshot, droopy eyes and slow speech. At this point the defendant was told to step out of the car which he did in a very slow, lethargic manner. Once the defendant stepped out of the car he told Officer Palazzo that he had taken Ambien 10 minutes ago, was sleepy, and that his legs were tired.
Officer Palazzo then asked the defendant to perform several standard field sobriety tests (SFSTs) consisting of the Horizontal Gaze Nystogamus (HGN), the Nine Step Walk and Turn, and the One Legged Stand. In conducting the HGN test, Officer Palazzo testified that the defendant exhibited results consistent with impairment by a drug but without the presence of nystagmus. Next Officer Palazzo had the defendant perform the Nine Step Walk and Turn. The defendant's performance indicated that he could be impaired by drugs. Officer Palazzo then had the defendant perform the One Legged Stand. The defendant's inability to perform the test also indicated that he was impaired by a drug. Officer Palazzo also had the defendant perform the Alphabet test which he also failed. In addition to the above noted tests, a portable breath test (PBT) was administered at the scene which produced a negative reading. Just prior to the actual arrest, Officer Palumbo had arrived at the scene as Officer Palazzo was conducting a field sobriety test on the defendant. As a result of the officer's direct observations of the defendant, including the defendant's performance on the standard field sobriety tests, Officer Palazzo determined the defendant to be impaired and placed him under arrest for Driving While Impaired By a Drug and was then Mirandized. The defendant, when asked if he understood his rights and if he was willing to answer questions replied in the affirmative to both questions. Officer Palazzo then conducted an inventory search of the vehicle prior to it being impounded, while Officer Palumbo placed the defendant in the police car. Officer Palazzo described the inventory procedure policy of the Nassau County Police to consist of entering the vehicle and listing any items found in the car on an impound sheet. These items would then be taken, verified and the appropriate change made if any items were deemed illegal. Officer Palazzo testified that within the scope of the search, the police do not go into any locked areas unless given permission from the defendant or a supervisor. Officer Palazzo further testified that his inventory search resulted in him finding Ambien and Klonopin in a container when he opened the middle console of the vehicle. The defendant was then transported to Central Testing (CTS) located at Nassau County Police Headquarters, 1490 Franklin Avenue, Mineola, New York, for chemical testing.
Conclusions of Law
Where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct ( People v. Malinsky, 15 N.Y.2d 86 [1986] ; People v. Wise, 46 N.Y.2d 321 [1978] ). Once the prosecution has met its burden, the defendant has the ultimate burden of establishing the illegality of the police conduct, by a fair preponderance of the evidence ( People v. Berrios, 28 N.Y.2d 361 [1971] ; People v. DiStefano, 38 N.Y.2d 640 [1976] ). Additionally, the People have the burden of proving the voluntariness of any statements allegedly made beyond a reasonable doubt ( People v. Valeruis, 31 N.Y.2d 51 [1972] ; People v. Anderson, 42 N.Y.2d [1977] ).
The stop of an automobile constitutes a limited seizure of its occupants for federal and state constitutional purposes ( Delaware v. Prouse, 440 U.S. 648 [1979] ; People v. Ingle, 36 N.Y.2d 413 [1975] ). As such, it must be justified at its inception, and must be reasonably related in its scope and duration to the circumstances which originally prompted it ( People v. Banks, 85 N.Y.2d 558, 562 [1995] ).
It is well-established that a police officer may not stop a vehicle merely on a hunch that an investigation might prove fruitful. Police officers may stop a vehicle to investigate a crime only where they have a reasonable suspicion that the car's occupants have been or are about to be involved in criminal activity ( People v. May, 81 N.Y.2d 725 [1995] ; People v. Sobotker, 42 N.Y.2d 559 [1978] ). This standard requires a quantum of knowledge sufficient to induce and ordinarily prudent and cautious person under the same circumstances to believe that criminal activity is at hand (People v. Banks, supra; People v. Sobotker, supra, 43 N.Y.2d at 564, 402 N.Y.S.2d 993, 373 N.E.2d 1218 ).
The police may also stop a car upon reasonable suspicion that a violation of the Vehicle and Traffic Law has occurred ( People v. Ingle, 36 N.Y.2d 413, 414 [1975] ; Delaware v. Prouse, 440 U.S. 648 [1979] ). This requires specific, articulable facts which, together with the rational inferences arising therefrom, reasonably warrant the intrusion ( People v. Ingle, supra, 36 N.Y.2d at 420, 369 N.Y.S.2d 67, 330 N.E.2d 39 ). Finally, a car stop will be upheld, irrespective of either the primary motivation of the officer or a determination of what a reasonable traffic officer would have done under the circumstances, provided the officer has probable cause to believe that the driver has committed a traffic violation ( Whren v. United States, 517 U.S. 806, 809–810 [1996] ; People v. Wright, 98 N.Y.2d 657 [2002] ; People v. Robinson, 97 N.Y.2d 341 [2001] ).
In the case at bar, the testimony of Officer Palazzo established that the defendant passed a stop sign on Shelter Rock Road and stopped on an angle in the roadway across the lanes of traffic. Based thereon, there is no question that Officer Palazzo was justified in stopping the defendant's vehicle upon the ground of a violation of the Vehicle and Traffic Law.
Following a lawful stop, it is well settled that a police officer may conduct a reasonable initial interrogation attendant to a roadside investigation ( People v. Kearney, 288 A.D.2d 398, 733 N.Y.S.2d 460 [2nd Dept 2001] ; People v. Harris, 186 A.D.2d 148, 587 N.Y.S.2d 425 [2nd Dept 1992] ). Here, it is clear that the defendant's statements made to Officer Palazzo were made in response to legitimate preliminary and pre-custodial inquiries which were investigatory in nature. Thus, the statements contained in the People's CPL 710.30 notice are admissible at trial.
The court further finds that Officer Palazzo had sufficient probable cause to arrest the defendant for Driving While Impaired by Drugs (VTL §§ 1192.4) based upon his observations of the defendant which included slow speech, an unsteady and lethargic gait, glassy blood shot eyes and his inability to perform various standard field sobriety tests (see People v. Ball, 141 A.D.2d 743, 529 N.Y.S.2d 840 [2nd Dept 1988] ; People v. Troche, 162 A.D.2d 483, 556 N.Y.S.2d 403 [2nd Dept 1990] ).
The defendant also contends that the inventory search of the vehicle was illegal. Accordingly, one must then look at the three objectives that are advanced by inventory searches: protecting an owner's property while it is in custody of the police; insuring police against claims of lost, stolen or vandalized property; and guarding police and others from dangerous instrumentalities that would otherwise go undetected ( Colorado v. Bertine, 479 U.S. 367 [1987] ; Illinois v. Lafayette, 462 U.S. 640 [1983] ). These governmental interests are weighed against the individual's expectation of privacy and the risk that the search will exceed the scope of its purposes and intrude without justification on the privacy interests of citizens ( Florida v. Wells, 495 U.S. 1 [1990] ; South Dakota v. Opperman, 478 U.S. 364 [1986] ).
It is firmly established that law enforcement officials may conduct an inventory search of a vehicle incident to arrest provided that the search is conducted according to a single familiar standard or procedure established by a police agency ( People v. Kearney, 288 A.D.2d 398, 733 N.Y.S.2d 460 [2d Dept 2001] ; People v. Colon, 202 A.D.2d 708, 608 N.Y.S.2d 351 [3d Dept 1994] ). A warrant based on probable cause is not required for such a search (Colorado v. Bertine, supra). However, the standard or established police procedure must meet two criteria to fall into the vehicle exception to the search warrant, to wit:
1.) The procedure must be rationally designed to meet objectives that justify the search in the first place; and
2.) The procedure must limit the discretion of the officer in the field ( People v. Salazar, 225 A.D.2d 419, 640 N.Y.S.2d 16 [2d Dept 1996] ; People v. Gatak, 80 N.Y.2d 715 [1993] ).
This narrowly drawn threshold test is necessary since, in the absence of a warrant from a neutral and detached Magistrate, it is an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably and do not become little more than an excuse for general rummaging to discover incriminating evidence.
Officer Palazzo's testimony indicated that the objectives advanced by the search were protecting the owner's property while it is in custody of the police; insuring the police against claims of lost, stolen or vandalized property; and guarding police and others from dangerous instrumentalities that would otherwise go undetected.
Thus, the first prong of the threshold test is sufficiently satisfied.
The testimony at the hearing indicated that Officer Palazzo followed the inventory procedure as promulgated by the Nassau County Police Department. As indicated by the testimony of Officer Palazzo, the procedure allowed a qualified, but not unlimited discretion of an officer in conducting an inventory search of a vehicle.
Thus, the second prong of the threshold test is also satisfied.
Accordingly, the items seized pursuant to the inventory search are also admissible at trial.
Having found reasonable cause for the stop (Ingle ), probable cause for the defendant's arrest (Dunaway ), and the defendant having stipulated in open court that the statements made to Officer Palazzo and Officers Palumbo and Nicholson at CTS were properly made and deemed admissible based on the fact that Officer Palazzo read the defendant his Miranda Rights and the defendant's subsequent waiver of those rights (Huntley ), and the fruits of the search and seizure having satisfied the requirements of Mapp, the defendant's motion to suppress is denied in all respects.