Opinion
2017–567
12-19-2017
PEOPLE of the State of New York, v. Joel FEINBERG, Defendant.
ANDREW N. GREHER, ESQ., Attorney for Defendant, 1161 Little Britain Road, Suite B, New Windsor, New York 12553 ORANGE COUNTY DISTRICT ATTORNEY, Attorney for the People, 40 Matthews Street, Goshen, New York 10924
ANDREW N. GREHER, ESQ., Attorney for Defendant, 1161 Little Britain Road, Suite B, New Windsor, New York 12553
ORANGE COUNTY DISTRICT ATTORNEY, Attorney for the People, 40 Matthews Street, Goshen, New York 10924
Craig Stephen Brown, J.
The defendant Joel Feinberg is charged with two counts of Operating a Motor Vehicle While Under the Influence of Drugs in violation of §§ 1192[4] and 1192[4–a] of the Vehicle and Traffic Law. By Decision & Order dated October 25, 2017, the instant matter was set down for a hearing. On November 21, 2017 a hearing was held. The hearing addressed issues concerning the suppression of physical evidence seized from the defendant and oral statements made by the defendant. Appearing for the People was Theresa Cayton, Esq., Assistant District Attorney for the County of Orange. Appearing for the defendant was Andrew Greher, Esq. The People called one witness: New York State Trooper Lance Saraceno. Defendant called no witnesses.
FINDINGS OF FACT
On March 26, 2017 at approximately 2:30 p.m., Trooper Lance Saraceno was on duty on Interstate 84 in the Town of Wallkill, Orange County, New York. Trooper Saraceno was stationary at a u-turn near mile postmarker 26 when he observed a 1999 Toyota being operated on Interstate 84. Trooper Saraceno's attention was drawn to this vehicle because a call of erratic operation of a vehicle had been received and the vehicle matched the general description given. Trooper Saraceno activated his lights and effectuated a traffic stop near mile postmarker 24. Trooper Saraceno approached the vehicle and interviewed the driver and sole occupant of the vehicle. Trooper Saraceno learned the identity of the driver to be Joel Feinberg and identified the defendant in open court. Trooper Saraceno asked Mr. Feinberg if he had any medical emergencies and Mr. Feinberg advised that he did not. Trooper Saraceno then asked Mr. Feinberg if he had taken any medication that day and Mr. Feinberg stated that he took morphine and valium. Trooper Saraceno described Mr. Feinberg as having very dilated eyes [sic] and very sluggish speech. However, when Trooper Saraceno asked Mr. Feinberg questions, Mr. Feinberg's answers logically made sense. Trooper Saraceno asked Mr. Feinberg to exit his vehicle. Upon exiting his vehicle, Mr. Feinberg used the vehicle to balance himself. After exiting the vehicle, Mr. Feinberg walked to the front of the vehicle. Trooper Saraceno could not recall if Mr. Feinberg used the vehicle to balance himself while walking to the front of the vehicle. Trooper Saraceno asked Mr. Feinberg to perform a horizontal gaze nystagmus test. While Trooper Saraceno was attempting to administer the test, Trooper Saraceno testified that Mr. Feinberg did not appear to be looking at the stimulus, which was a pen. Trooper Saraceno did not ask Mr. Feinberg to perform any other field sobriety tests. Instead, after unsuccessfully attempting to administer the horizontal gaze nystagmus test, Trooper Saraceno placed Mr. Feinberg under arrest. Trooper Saraceno transported Mr. Feinberg to the State Police barracks in Middletown, New York. There, Mr. Feinberg was advised of his Miranda rights by Trooper Saraceno. After Mr. Feinberg had been Mirandized , Trooper Saraceno asked him what medications he had taken. Mr. Feinberg stated that he had taken morphine and valium earlier that morning at approximately 8:00 a.m. Trooper Saraceno then advised Mr. Feinberg of his DWAI warnings and Mr. Feinberg consented to a chemical analysis of his blood. Thereafter, Trooper Saraceno took the defendant to Orange Regional Medical Center for the drawing of defendant's blood.
CONCLUSIONS OF LAW AND DECISION
During the suppression hearing, there was no testimony or evidence as to the identity of the person who had contacted the police and reported the erratic operation of the motor vehicle. Without such evidence, the presumption of reliability of "an identified citizen informant" does not apply ( People v. Parris , 83 NY2d 342, 350 ). The People may argue that they have evidence of the caller's reliability and/or identity. However, the People failed to present that evidence at the suppression hearing. Therefore, any such evidence cannot be considered by this Court ( People v. Argyris , 24 NY3d 1138, 1185 [footnote 5] [2014], cert. denied , 135 S.Ct. 2902 [2015] ); see People v. Washington , 291 AD2d 780, 781 [4th Dept., 2002], lv. denied 98 NY2d 682 [2002] ). Further, the trooper did not testify as to any observation of the defendant driving erratically or committing any traffic infraction. Rather, the evidence establishes that the trooper pulled over the defendant's vehicle based solely upon the unnamed informant's tip. "Reasonable suspicion to justify the stop of defendant's vehicle was not established, in the absence of evidence at the suppression hearing showing specific and articulable facts communicated by the informant concerning the allegedly erratic driving (see, People v. Scheff, 166 AD2d 821 ) or the basis for the informant's knowledge (see, People v. Phillips , 225 AD2d 1043, 1044 )" (People v. Valdes , Docket No. 98–1233, Supreme Court, Appellate Term, 9th and 10th Judicial Districts [1999] ). In addition, "whether evaluated in light of the totality of the circumstances or under the Aguilar–Spinelli framework, [the hearing record is devoid of any testimony establishing] the reliability of the tip... The caller's cursory allegation that the driver of the car was [driving erratically], without more, did not supply the trooper who stopped the car with reasonable suspicion that defendant was driving while intoxicated [or impaired]" ( People v. Argyris , 24 NY3d 1138, 1141 [2014] citing People v. De Bour [La Pene ], 40 NY2d 310, 225, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; cf. Navarette v. California , 134 S.Ct. 1683 at 1690–1692 [2014] ).
The physical evidence seized from the defendant and the defendant's statements were obtained as a result of an illegal stop in violation of defendant's Fourth Amendment rights. Accordingly, the defendant's motion to suppress the physical evidence and statements is hereby granted (see People v. Noble, 154 AD3d 883 [2nd Dept., 2017] ; People v. Argyris , 24 NY3d 1138 [2014], cert. denied , 135 S.Ct. 2902 [2015] ; People v. Moore , 6 NY3d 496 [2006] ; People v. William "II" , 98 NY2d 93 [2002] ; People v. Sampson , 68 AD3d 1455 [3rd Dept., 2004] ; People v. Shuler , 98 AD3d 695 [2nd Dept., 2012] ; People v. Harris , 122 AD3d 942 [2nd Dept., 2014] ; People v. Proper , 52 Misc 3d 1211(A) [2016] ; People v. Clermont , 133 AD3d 612 [2nd Dept., 2015] ).
This matter is scheduled for a conference to be held on December 20, 2017 at 9:15 A.M. The defendant, defendant's counsel, and the District Attorney are directed to be present. The People should be prepared on that date to advise the Court if they intend to certify the case and take an appeal or are going to proceed to trial.
The foregoing constitutes the Decision and Order of this Court.