Opinion
No. 12070109.
2013-02-1
The PEOPLE of the State of New York v. Joseph M. ANELLO, Defendant.
Candace Lee, Assistant District Attorney. Timothy C. Rath, of Counsel Fiandach & Fiandach, Attorney, for Defendant.
Candace Lee, Assistant District Attorney. Timothy C. Rath, of Counsel Fiandach & Fiandach, Attorney, for Defendant.
THOMAS J. DiSALVO, J.
The defendant was charged with Boating While Intoxicated, Navigation Law Section 49–a(2)(d), Operating a Power Boat with a BAC over .08 percent, Navigation Law Section 49–a(2)(b) and Expired Flare Kit, Navigation Law Section 40–7 on May 20, 2012. The defendant was issued a “Simplified Information/Complaint” for each charge. The defendant appeared in court with his attorney for arraignment. The matter was set down for argument of motions, which resulted in the granting of Probable Cause and Huntley Hearings. At those hearings, the People presented one witness, namely Deputy Sheriff John Whitehair.
The deputy testified that on May 20, 2012 he was working for the Marine Unit of Monroe County Sheriff's Department. At approximately 2:45 P.M. he was operating his patrol boat westbound on Lake Ontario off shore from the City of Rochester, New York. While so doing he received a 911 dispatch wherein he was advised that an unnamed retired sheriff's deputy had observed people that appeared to be intoxicated get on board a large boat near the mouth of the Genesee River. The boat was docked in the vicinity of an establishment known as O'Loughlin's Bar. It was later observed by said retired sheriff's deputy to being operated in a northbound direction on the Genesee River toward Lake Ontario. Deputy Whitehair testified that he then proceeded easterly on Lake Ontario toward the outlet of the Genesee River.He indicated that earlier that day he had been on patrol in the Genesee River and had observed a large vessel that had the name “Capital Gains” on the stern of said boat.
As he passed the Genesee River in response to the dispatch he observed the same large boat on the lake heading east toward Irondequoit Bay. The deputy continued to follow the boat as it proceeded easterly about a mile off shore. Eventually the boat passed the entrance to Irondequoit Bay offshore from the Town of Webster, but then proceed in a southwesterly direction toward the entrance to the bay. The deputy indicated that he observed a white male wearing a dark shirt with the word “Staff” written on the back. He observed other individuals near the stern of the vessel.
Irondequoit Bay is set between the towns of Irondequoit on the West, Penfield on the South and Webster on the East.
At that time he engaged his emergency lights and his siren in an attempt to stop and board said boat. The deputy indicated that subsequent to engaging the emergency lights and siren he observed the pilot of the boat leave the wheel while the boat was still in operation. The pilot then stepped toward the rear of said boat. The boat continued in motion at about fifteen to twenty miles per hour, without anyone operating same, until another individual took control of the wheel and brought the boat to a stop. The deputy drove his vessel toward the port side of the vessel in question, where he tied off his boat.The deputy went aboard said boat upon being given permission to do so. That permission was granted by an individual who identified himself as the boat's owner.
Upon going aboard the deputy observed the operator of the boat to have bloodshot eyes, a pale face and slurred speech. That individual produced a New York State photo driver license, which identified him as the said Joseph M. Anello, the defendant herein. Deputy Whitehair requested an opportunity to inspect the vessel's safety equipment. All said equipment was in order except for an expired flare kit, for which he was issued the previously referred to simplified information.
The deputy engaged the defendant in conversation, wherein he admitted to drinking four to five beers while at the bar and on the boat. He also admitted to operating the boat. During that conversation the deputy testified to having observed a strong order of an alcoholic beverage coming from the defendant. The deputy also testified to observing the defendant swaying while was walking about the boat. The defendant agreed to engage in various field sobriety tests. Whereupon the defendant was transported via the patrol boat to a parking area on the Irondequoit side of the bay at 4999 Culver Road. The deputy testified to administering the alphabet test, the counting test, the walk and turn test and the finger to nose test. Although the defendant was able to successfully complete the counting test, he reportedly failed the remaining field sobriety tests. There was also a positive reading in the alcosensor test. Upon completion of said tests the defendant was arrested for boating while intoxicated. The defendant was then read his Miranda warnings and he subsequently agreed to speak to the officer. Issues Presented.
Was the deputy justified in relying on the anonymous tip under the “fellow officer rule”?
Was the investigative stop of the defendant's boat justified?
Did the officer have probable cause to arrest the defendant?
Should the defendant's statements to the deputy be suppressed?
Legal Analysis.
I. Anonymous tip/Fellow Officer. The Monroe County Sheriff's Deputy was on routine patrol some distance west of the location of the anonymous tipster, who reportedly observed a number of what appeared to him as intoxicated individuals board a large boat, later identified as the said “Capital Gains”. That tip was conferred on Deputy Whitehair via the 911 dispatcher. The tipster was alleged to have been a retired Monroe County Sheriff's Deputy. That retired deputy was not produced at the probable cause hearing. Nor was there any further information provided as to the identity of that individual.
“The fellow officer rule has been stated as follows: the arresting officer acts with probable cause when he arrests on the direction of a fellow officer who has probable cause or without such direction on the basis of information received from a fellow officer who testifies at the suppression hearing concerning how he obtained his knowledge, which information itself or together with that known by the arresting officer establishes probable cause' “ [People v. Gittens, (2nd Dept.1995) 211 A.D.2d 242,244, 627 N.Y.S.2d 435,438.]
By implication the People contend that the tip was reliable even though it was from an anonymous source, because it came from a retired sheriff's deputy. In this case the tip did not even come directly from the tipster to the arresting officer, but was relayed through the 911 operator. “An anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information—so that the police can test the reliability of the tip.” [People v. Moore, 6 N.Y. 496,499, 814 N.Y.S.2d 567,569 (2006) ]. In any event, when the deputy navigated his patrol boat eastbound and initially met up with the defendant's vessel, there was no evidence of any wrongdoing. Thus the tip could not be considered a reliable anonymous tip. Nor could it be considered reliable as coming from a fellow officer.
II. Investigative Stop. Despite the lack of reliability of the anonymous tip and the inability to rely on the observation of a fellow officer, Deputy Whitehair attempted to stop the defendant's boat by engaging both his emergency lights and siren. In fact,
“... the Court of Appeals has made it abundantly clear' (Sobotker, 43 N.Y.2d at 563) that police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime.' “ [People v. Washburn, 309 A.D.2d 1270, 1271, 765 N.Y.S.2d 76, 77 (4th Dept.20003) ].
It is certain that the rules for stopping a vehicle would also apply to stopping a vessel.Had the story ended there the stop might not have been justified. See People v. Minnamon, 25 Misc.3d 1219A; 951 N.Y.S.2d 88, 2012 N.Y. Slip Op. 50744U, wherein the County Court, Falvey, J., reversed the judgment of conviction of the trial court and dismissed the conviction of a defendant boat operator. That decision, among other reasons, was based on the fact that
See also People v. Robinson, 97 N.Y.2d 341,351, 741 N.Y.S.2d 147,152 (2001) and People v. Jones, 32 Misc.3d 1209A, 932 N.Y.S.2d 762, 2011 N.Y. Slip Op 51216U.
“The People's witnesses were unable to articulate a vessel or person that was unreasonably endangered by defendant's action. The People's first witness testified that it is illegal to ride on the bows or the gun wale or the transom in New York State. However, Navigation Law Section 45(1)(a) does not so state”.”
In other words, the trial court in that case failed to meet the standards set out by the Washburn and Robinson cases of probable cause or reasonable suspicion that a crime is in the offing .
Minnamon at * * * 10.
People v. Washburn, 309 A.D.2d 1270,1271, 765 N.Y.S.2d 76, 77 (4th Dept.20003) ]; People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147 (2001).
However, the facts of the case did not end with the immediate stop of the defendant's vessel at the request of Deputy Whitehair. The testimony of the deputy was that upon the engagement of his lights and siren the pilot of the boat abandoned his post, while the said boat continued eastward pilotless at approximate fifteen to twenty miles per hour. That behavior could certainly have violated Section 45(1)(a) of the Navigation Law which states in pertinent part
“Every master or operator of a vessel shall at all times navigate the same in a careful and prudent manner such a way as not to unreasonably interfere with the free use of the navigable waters of the state.... Reckless operation is prohibited. Any person operating a vessel in violation of this subdivision shall be guilty of a misdemeanor....”
Thus the behavior of the defendant in leaving the wheel of the boat in violation of Section 45(1)(a) of the Navigation Law gave the deputy the authority to continue his pursuit and detention of the vessel in question and inquire of the defendant, who was identified as the individual that the deputy observed piloting the boat.
III. Probable Cause to Arrest. The errant boat was brought under control and stopped by another individual aboard. After stopping and tying up to the subject vessel the deputy was given permission to board by the boat's owner. Upon boarding, the deputy approached the defendant and requested and received a driver license as identification. In so doing the deputy observed various indicia of intoxication, i.e. bloodshot eyes, slurred speech, difficulty in moving about and swaying. Pursuant to the portion of the alcohol influence report that was entered into evidence, the defendant admitted to Deputy Whitehair that he had consumed five to six beers both at the aforementioned O'Loughin's and while on board the boat. Those observations and that admission led to the previously described field sobriety tests.
“The terms reasonable cause' and probable cause' are used interchangeably”. (Gerstenzang, Handling The DWI Case in New York, Section 1:18 at 40 [2011–2012 ed] ). Reasonable Cause is defined in C .P.L. Section 70.10(2) 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 whichare 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.”
Based on the officer's observations of the defendant on the boat and the performance of the field sobriety tests performed on shore, the deputy had probable cause to arrest the defendant for boating while intoxicated.
IV. Huntley Hearing. The evidence at the hearing proved beyond a reasonable doubt that the statements made by the defendant were voluntary made. The initial statements made aboard the boat were made to the deputy during the investigatory stage of the stop. The remaining statements were made after the defendant was properly advised of his Miranda rights.
Conclusion.
The defendant's motion to suppress the fruits of the arrest including the observations of the defendant due to a lack of probable cause to arrest the defendant is hereby denied. Likewise the defendant's motion to suppress statements of the defendant made to law enforcement personnel is also denied.This constitutes the decision and order of this court.