Opinion
18030132.01
10-23-2018
The People of the State of New York, Plaintiff, v. Eric J. Bock, Defendant.
FOR THE PROSECUTION: SANDRA DOORLEY, ESQ. MONROE COUNTY DISTRICT ATTORNEY BY: ADAM WILLMAN, ESQ. ASSISTANT DISTRICT ATTORNEY 47 S. Fitzhugh Street Suite 832 Rochester, New York 14614 FOR THE DEFENDANT: THE SCHIANO LAW OFFICE BY: CHRISTOPHER SCHIANO, ESQ. One East Main Street, Suite 315 Rochester, New York 14614
FOR THE PROSECUTION: SANDRA DOORLEY, ESQ. MONROE COUNTY DISTRICT ATTORNEY BY: ADAM WILLMAN, ESQ. ASSISTANT DISTRICT ATTORNEY 47 S. Fitzhugh Street Suite 832 Rochester, New York 14614 FOR THE DEFENDANT: THE SCHIANO LAW OFFICE BY: CHRISTOPHER SCHIANO, ESQ. One East Main Street, Suite 315 Rochester, New York 14614 Michael A. Sciortino, J.
I. PROCEDURAL BACKGROUND+
The Defendant, Eric J. Bock (hereinafter referred to as "defendant"), has been charged with the following violations of the New York Vehicle and Traffic Law: Driving While Intoxicated in violation of §1192(2) and (3), a Class A Misdemeanor, in addition to two (2) other Vehicle and Traffic Law violations as Traffic Infractions, including §1128(a) — Moved From Lane Unsafely and §1180(d) — Speed in Zone, all in connection with an incident allegedly occurring in the Town of Parma, County of Monroe, State of New York on March 19, 2018. On August 23, 2018, a pre-trial hearing was held pursuant to People v. Huntley, 15 NY2d 72 (1965) and Dunaway v. New York, 442 U.S. 200 (1979) (collectively referred to as "Huntley/Dunaway Hearing"), to determine whether the Defendant's alleged statements were involuntarily made within the meaning of New York Criminal Procedure Law §60.45, and whether there was probable cause or a reasonable suspicion to stop the Defendant's vehicle or effectuate an arrest of the defendant.
At a Huntley/Dunaway hearing, where a defendant challenges the legality of a seizure, along with statements and other evidence allegedly obtained as a result thereof, the People of the State of New York have the burden of going forward, in the first instance, to establish the legality of the police conduct. See, People v. Malinsky, 15 NY2d 86 (1965); People v. Wise, 46 NY2d 321 (1978); People v. Dodt, 61 NY2d 408 (1984); People v. Moses, 32 AD3d 866 (2nd Dept., 2006), lv. den. 7 NY3d 927 (2006). Once the prosecution has met this burden, the defendant has the ultimate burden of establishing the illegality of the police conduct, by a fair preponderance of the evidence. See, People v. Berrios, 28 NY2d 361 (1971); see also, People v. Di Stefano, 38 NY2d 640 (1976); People v. Lombardi, 18 AD2d 177 (2nd Dept.,1963). The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before they may be admitted into evidence on the People's case in chief at trial. See, People v. Huntley, supra.; see also, People v. Valerius, 31 NY2d 51 (1972); People v. Anderson, 42 NY2d 35 (1977). At this Huntley/Dunaway hearing, the People attempt to meet their burden through the testimony of Monroe County Sheriff's Deputy Joseph Corona. The Defendant did not call any witnesses. After hearing from and observing the demeanor of Deputy Corona, the court finds his testimony to be credible and makes the following Findings of Fact:
II. FINDINGS OF FACT
On March 19, 2018, at approximately 6:02 p.m., Deputy Corona, a member of the Monroe County Sheriff's Department, was on duty in the Town of Parma, County of Monroe, State of New York. At that time, Deputy Corona was traveling northbound on Route 259 in the area of Parma Center Road. (Tr. 5). Deputy Corona testified that he was behind a 2008 Chevrolet Pickup truck (the "vehicle") that was traveling an estimated 53 miles per hour in a 40 mile per hour speed zone. Deputy Corona then began to follow the vehicle and the vehicle left the roadway towards the eastern side of the roadway nearly striking a mailbox and correcting back onto the roadway. (Tr. 6, 24). Deputy Corona recalled the vehicle leaving the roadway by at least one foot and onto the gravel shoulder. (Tr. 7, 24). The vehicle nearly striking a mailbox drew Deputy Corona's attention. (Tr. 25). Deputy Corona was asked on cross-examination whether he was aware that the mailboxes were on the western side of the roadway and not on the eastern side of the roadway where Deputy Corona testified the vehicle had almost struck one with its passenger side. (Tr. 25-26). Deputy Corona confirmed that his sworn testimony is that the defendant almost hit a mailbox that is on the eastern side of the road north of Route 18 in the Village of Hilton. (Tr. 26). There was no other proof introduced as to the conflict with the placement of the mailboxes. Notwithstanding, Deputy Corona testified that he continued to follow the vehicle until it was safe to effectuate a motor vehicle stop in the area of the intersection with Burritt Road. (Tr. 6). Following the traffic stop, Deputy Corona then exited his patrol vehicle, approached the observed vehicle and requested the operator's license, registration, and proof of insurance. (Tr. 8). Deputy Corona made no notations that the defendant failed to provide him with the requested and proper documents, or that he fumbled, dropped, or did anything improper with the documents. (Tr. 28).
Deputy Corona identified the defendant as the driver of the vehicle. (Tr. 9). Deputy Corona testified that the defendant initially stated that he thought he was traveling approximately 50 miles per hour in a 40 mile per hour speed zone and was distracted while driving as he was on his cell phone and corrected his position on the roadway because of being distracted. (Tr. 10). Deputy Corona testified that he also observed that the defendant's eyes were bloodshot, red and glossy, his breath had a strong odor of alcoholic beverage, that his speech was slow and slurred, and that the defendant had a flushed complexion. (Tr. 8). Deputy Corona had inquired whether the defendant had consumed any alcohol prior to operation, and the defendant indicated that he had consumed two (2) sixteen (16) ounce PBRs. (Tr. 10). The defendant further stated that he started drinking at 5:00 p.m. and his last consumption of alcohol was inside the motor vehicle while driving at or around 6:00 p.m. (Tr. 10-11). Deputy Corona asked the defendant if he felt safe to operate the motor vehicle and the defendant replied that "he felt fine". (Tr. 11). Deputy Corona advised that he needed to verify that it was safe for the defendant to operate the motor vehicle and asked the defendant to exit his vehicle. (Tr. 11, 29). It should be noted that during this entire conversation with the defendant, Deputy Corona made no threats or promises, nor was his weapon drawn, nor did he make any physical contact or threat of use of force. (Tr. 10, 19). At no point did the defendant stop talking or ask to speak to an attorney. See id.
As the defendant exited the vehicle, Deputy Corona testified that he believed the defendant utilized the vehicle for balance. (Tr. 29). Once the defendant was outside of the vehicle, Deputy Corona requested the defendant to perform three (3) field sobriety tests-the Horizontal Gaze Nystagmus ("HGN"), Walk-and-Turn, and One-Legged Stand. (Tr. 11-18). Regarding the first test, the HGN test, Deputy Corona observed that there was a lack of smooth pursuit in both eyes, sustained and distinct nystagmus at maximum deviation in both eyes and in both passes, and observed the onset of nystagmus present prior to a forty-five degree angle in both eyes and in both passes. (Tr. 13). Based upon the presence of six out of six clues that were observed, Deputy Corona concluded that the defendant was intoxicated. (Tr. 14). The second test administered by Deputy Corona was the Walk-and-Turn test. Deputy Corona noted that following his instructions to the defendant, he stepped off line during the instructional phase and started the testing too soon. (Tr. 16). The defendant missed the heel to toe on his steps, utilized his arms for balance, and performed an improper turn during the test. (Tr. 15-16). The defendant was able to count in proper sequential order, out loud, and Deputy Corona had no difficulty understanding the defendant as he was counting. (Tr. 32-33). However, based upon the presence of six out of eight clues that were observed, Deputy Corona concluded that the defendant was intoxicated. (Tr. 16-17). The third test was the One-Legged Stand and during this test the defendant raised his left foot utilizing his right foot as his planted foot, used his arms for balance, swayed while balancing, and put his foot down on his tenth and thirteenth thousand count, counting to eighteen thousand count during a thirty-second time elapse. (Tr. 17-18). The defendant was able to count by the thousands and in proper sequential order. (Tr. 33). The defendant also advised that he had shattered the heel of his foot in 2017. (Tr. 33). Notwithstanding, Deputy Corona testified that based on the indicated clues above, the defendant was intoxicated. (Tr. 18). As a result of the failure of the three standardized filed sobriety tests, Deputy Corona formed the opinion that the defendant was intoxicated by the consumption of alcohol and placed the defendant under arrest. (Tr. 19).
III. LEGAL ANALYSIS AND REASON FOR DETERMINATION
It is well established that "the stopping of an automobile by the police constitutes an impermissible seizure (citations omitted)." People v. Sobotker, 43 NY2d 559 (1978). Such a seizure may nevertheless be upheld "where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation[.]" People v. Robinson, 97 NY2d 341 (2001); see also, Whren v. U.S., 517 U.S. 806 (1996); People v. Boyd, 68 AD3d 889 (2nd Dept.,2009) lv. den. 14 NY3d 838 (2010). At a minimum, the police may stop a motor vehicle "where there exists at least a reasonable suspicion that the driver or the occupants of the vehicle have committed, are committing, or are about to commit a crime (citation omitted)." People v. Spencer, 84 NY2d 749 (1995); see also, People v. O'Hare, 73 AD3d 812 (2nd Dept., 2010) ["A police officer may stop a car, inter alia, if the officer has a reasonable suspicion that a traffic infraction has been committed (citation omitted)."] Reasonable suspicion, as used here, has been defined as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand." People v. Cantor, 36 NY2d 106 (1975); see also, People v. William "II", 98 NY2d 93 (2002); People v. Martinez, 80 NY2d 444 (1992).
There is no question that Deputy Corona observed the vehicle speeding at 53 miles per hour in a 40 mile per hour speed zone, moving from the lane unsafely by crossing over the fog line and onto the gravel shoulder off the roadway, and all of the additional indicators that lead Deputy Corona to believe the defendant was intoxicated. The defendant stated to Deputy Corona at the scene of the traffic stop that he last consumed alcohol in the motor vehicle while driving. (Tr. 10-11). From this testimony it could be argued that the defendant did in fact consume an alcoholic beverage while driving, and was traveling at an excess speed which resulted in a substantial danger to other motorists in the immediate area. See generally, People v. Brand, 71 Ill.App.3d 698, 28 Ill.Dec. 83, 390 N.E.2d 65 (1979), [the court looked to whether the defendant either endangered other motorists or that other motorists were affected by the defendant's conduct]. The closing argument submitted by the defendant indicates that Deputy Corona was either untruthful or exaggerated his testimony. (See, Closing Argument of Christopher A. Schiano, Esq.). This Court notes that credibility is always at issue at a suppression hearing. See, People v. Nicodemus, 247 AD2d 833). However, there was no other evidence introduced that the mailboxes were on the western side of the roadway other than Mr. Schiano's own questioning of Deputy Corona. It is well settled that questions of counsel are not evidence at trial, but rather testimony or physical documents or photographs with a proper foundation that may be introduced is direct evidence. The Court is not able to take judicial notice of the physical aspects of the mailbox being allegedly on the western portion of Route 259, as requested in the very well-articulated closing argument. Based upon all of the foregoing, the court finds that the Defendant's conduct in speeding at 53 miles per hour in a 40 mile per hour speed zone and moving from the lane unsafely by crossing over the fog line and onto the gravel shoulder of the roadway does provide Deputy Corona with probable cause to believe that the Defendant had violated Vehicle and Traffic Law §1128(a) — Moved From Lane Unsafely and §1180(d) — Speed in Zone. As a result of the Field Sobriety Tests and the defendant subsequently having been placed under arrest for driving while intoxicated, any statements made to Deputy Corona are admissible as they were made to Deputy Corona voluntarily and without any coercion or threatened use of force. (Tr. 10, 19). Accordingly, the People have been able to prove, beyond a reasonable doubt, that the statements in question were voluntarily made and may be admitted into evidence on the People's case in chief at trial. See, People v. Huntley, supra.; see also, People v. Valerius, 31 NY2d 51 (1972); People v. Anderson, 42 NY2d 35 (1977).
Lastly, the defendant moves to dismiss the accusatory instruments consistent with Criminal Procedure Law §30.30 in that the defendant's rights to a speedy trial were violated in that the People of the State of New York did not fully announce readiness and were not in fact ready for trial within at time period of at least 95 days. The Court has considered defendant's motion and reviewed the various dates where the people had announced readiness consistent with People v. Kendzia, 64 NY2d 331; see also, People v. Hamilton, 46 NY2d 932. The Court is convinced that the People were ready for trial within ninety days as required within Section 30.30(1) of the Criminal Procedure Law. Accordingly, the motion is denied.
IV. CONCLUSIONS OF LAW:
The Defendant's application to suppress all evidence recovered by the Monroe County Sheriff's Department is denied. The Defendant's motion to dismiss the accusatory instruments consistent with Criminal Procedure Law §30.30 is denied. Accordingly,
IT IS HEREBY ORDERED AND DECREED, that this matter be returned to the Court's calendar on Thursday, October 25, 2018 at 6:00 p.m. for the purpose of further disposition and/or the scheduling of a trial by jury or of this Court.
This constitutes the decision and order of the Justice Court in the Town of Parma, County of Monroe, State of New York. DATED: October 23, 2018
HON. MICHAEL A. SCIORTINO
Town Justice, Town of Parma