Opinion
No. 21120052
09-30-2022
The People of the State of New York v. Marc V. Gentile, Defendant.
Sandra Doorley, District Attorney, Monroe County (John LaDuca of Counsel), for plaintiff. James W. Cole, Rochester, for defendant.
Unpublished Opinion
Sandra Doorley, District Attorney, Monroe County (John LaDuca of Counsel), for plaintiff.
James W. Cole, Rochester, for defendant.
Thomas J. DiSalvo, J.
History of the Case.
The defendant was charged with driver's view obstructed, VTL § 375 (30), VTL § aggravated unlicensed operation, 3rd, VTL § 511 (1) (a), driving while ability impaired by drugs, VTL § 1194 (4) on December 2, 2021 at 11:52 P.M. on Ridge Road in the Town of Webster. Defense counsel submitted Omnibus Motions wherein, among other things, he requested probable cause and Huntley hearings. Said hearings were conducted on August 12, 2022.
Facts of the Case.
Probable Cause Hearing.
At that hearing the People called one witness, to wit: Webster Police Officer Timothy Brewer. Said officer testified that he and other Webster Officers responded to a 911 call requesting that Webster Police respond to the Kwik Mart on the southwest corner of Ridge Road and Five Mile Line Road. The call was the result of a store clerk's observation of the defendant whom he described in his deposition as being either drunk or on drugs. According to the said supporting deposition of the said store clerk, the defendant asked for $11.00 of gas and eventually pulled out a credit card to make said purchase. However, the credit card was denied. While waiting for the credit card transaction to be approved, the defendant appeared to fall asleep while standing at the counter. He stepped aside as another customer came up to the counter. As he was waiting on the next customer the clerk observed that the defendant walked down one of store aisles. Whereupon he heard a bunch of items fall to the floor from that location. Upon walking over to that spot, the clerk observed the defendant hunched over a rack of cookies and chips that he had knocked over. The store clerk directed the defendant to leave the store. Upon paying cash for the gas the defendant walked out of the store. It was at that time the clerk texted his girlfriend asking her to call 911 for assistance. After pumping the gas he purchased the defendant reentered his truck.
Officer Brewer was dispatched to the convenience store in question. Upon arrival he observed a red Ford Ranger parked across a couple of parking spaces in the middle of the lot. As the officer walked past the vehicle he saw one individual inside the truck who "appeared out it". The officer stated that he shined his flashlights on that person, who was later identified as Marc V. Gentile. The officer testified that said person was asleep. The store clerk confirmed to Officer Brewer that the individual in the truck was the reason for the 911call. When the Officer left the store he saw that the defendant had driven out of the parking lot and that he was heading Westerly on Ridge Road. The three Webster Police Officers, including Officer Brewer, pursued the truck.
The said truck was stopped down the road near the intersection of Ridge Road and Staci Lane. Officer Brewer testified that upon the vehicle being stopped he approached the said driver. At that time the other officers were speaking to the defendant. Officer Brewer observed that the defendant was drooling from the right side of his mouth. The defendant was directed to exit his vehicle, which he did. It was at that time that the defendant was identified as the operator of the truck. Officer Brewer observed various indicia of intoxication and/or impairment such as incoherent, mumbling, slurred speech and a thick tongue. Upon being asked to walk to a nearby parking lot, the defendant was seen to be swaying and unsteady on his feet as he walked. The officer had testified to his training in detecting the common characteristics of persons driving while intoxicated or ability impaired by drugs. He also testified that he was ARIDE certified .
ARIDE stands for Advanced Roadside Driving Enforcement. The court will take judicial notice that as a result of said certification the officer was trained to observe, identify and articulate the signs of impairment related to drugs, alcohol or a combination of both.
The defendant was then asked to perform various roadside sobriety tests. There was no impairment demonstrated by the horizontal or vertical gaze nystagmus tests or the lack of convergence test. However his performances on the walk and turn, one-leg stand, the Romberg and finger-to-nose tests indicated to Officer Brewer that the defendant showed significant signs of impairment.
Upon the completion of the field sobriety tests Officer Brewer arrested the defendant for driving while ability impaired by drugs.
Huntley Hearing.
Officer Brewer then testified to reading the defendant his Miranda rights. A copy of his Miranda warning card was entered into evidence. The officer testified that he did nothing to coerce the defendant into speaking with him. He further testified that after being read his rights, the defendant agreed to speak with the officer. Whereupon he admitted to ingesting a bump of heroin.
Defense counsel did not cross-examine the officer. There were no further witnesses by the People. The defendant did not put on any witnesses.
Issues Presented.
Were the Webster Police justified in stopping the defendant's vehicle?
Was there probable cause to arrest the defendant for driving while ability impaired by drugs?
Were the statements of the defendant voluntarily made?
Legal Analysis.
Stop of the Vehicle.
The defense contends that the Webster Police officers did not have probable cause to stop the defendant's truck and detain the defendant. In fact, it is defense counsel's position that probable cause is the only basis upon which a police officer may stop a vehicle. In New York probable cause is more accurately described as reasonable cause. "The CPL uses the phrase 'reasonable cause' See e.g. CPL § 70.10(2). However, it is well settled that '[r]easonable cause means 'probable cause'".
(Gerstenzang, Handling a DWI Case in New York§ 1;30 at 56 [2021-2022 ed])
Defense counsel's reliance on the position that probable cause is the sole basis permitting the stop of a vehicle by the police is mistaken. In a case where the stop of the vehicle was upheld even though there was no probable cause to stop the vehicle, the court stated
"Contrary to the suggestion made by the defendant at the hearing... neither Robinson, nor its progeny (i.e., People v. Sluszka, 15 A.D.3d 421 [2d Dept 2005]), altered the long-standing rule that a police officer may stop a car if he has a reasonable suspicion that a suspect therein is committing, is about to commit or has committed a crime (2-19 New York Criminal Practice § 19.10 (3))." (People v. Ilardi, 13 Misc.3d 1210(A), 2006 NY Slip Op 51769[U], *2 [2006])
Reliance on People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147 (2002) under the facts of the instant case is misplaced. In fact, Robinson does not stand for the proposition that probable cause is the sole basis on which the police must rely to stop a vehicle. The holding in Robinson is more limited in its scope.
"In People v. Robinson (97 N.Y.2d 341 [2001]), the Court of Appeals adopted Whren v. United States (517 U.S. 806 [1996]), and held that a stop based on probable cause of a traffic violation was not invalid merely because the officer used the otherwise lawful stop as a pretext for a different investigative end. Stated differently, the Court held that the officer's subjective motivation in stopping the vehicle was not relevant where the stop was predicated on probable cause."
Ilardi at *2.
Nevertheless, a stop of a vehicle based on reasonable suspicion rather than probable cause must , ab initio, be reasonable based on the circumstances of the particular case. "Thus, since the stop of defendant's automobile was a limited seizure within the meaning of constitutional limitations, if it were unreasonable, the subsequent discoveries... would constitute derivative evidence obtained by an illegal seizure and therefore should have been suppressed...." (People v. Ingle, 36 N.Y.2d 413, 418-419, 369 N.Y.S.2d 67,73 [1975]) Certainly,
"... a motorist has the general right to be free from arbitrary State intrusion on his freedom of movement even in an automobile.... (see Brinegar v. United States, 338 U.S. 160, 177, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 ("'the citizen who have given no good cause for believing he is engaged in (criminal) activity is entitled to proceed on his way without inference'"); see, also, Terry v. Ohio, 392 U.S. 1, 15, 21, 88 S.Ct. 1868, 1876, 1879, 20 L.Ed.2d 889...)."
Ingle at 419,73.
In order to determine if the Webster Police acted reasonably in stopping the defendant herein, or in other words was there reasonable suspicion that the defendant was committing a crime, the Court must again review the facts presented to the officers at the time.It is apparent that Officer Brewer arrived at the convenience store originally unsure of what was the problem. However, he testified to having made some initial observations of the defendant and his truck. He then spoke to the store clerk who provided him with first hand information about the defendant. That information would to any reasonable person suggest that the defendant may have been impaired, intoxicated or suffering from some medical condition. Although it is uncertain who specifically called 911, Officer Brewer did speak to a known informant and eye witness, i.e. the store clerk, who described the defendant's behavior while he was just in the store. It is an established principle that "An identified citizen informant is presumed to be personally reliable...." (People v. Parris, 83 N.Y.2d 342, 350, 610 N.Y.S.2d 464,468 [1994]) In addition, as previously stated, the information provided to the police officer was preceded by the officer's own observation of the defendant's truck improperly parked across a couple of parking spaces and the defendant who appeared to be asleep apparently behind the wheel of the car. Then when the police officer came out of the convenience store he observed that the defendant had driven his truck out of the parking lot and onto Ridge Road.
CPL 150.50 (1) states as follows:
"In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct."
Based on the observations of the store clerk and the independent observations of Officer Brewer, it would seem obvious that there was reasonable suspicion sufficient to justify the stop of the defendant's truck. Moreover, it would have been poor police work indeed, had the officers ignored what they had seen and heard and failed to pursue and stop the defendant.
Arrest of the Defendant.
The defense alleges that Officer Brewer did not have probable cause, i.e. reasonable cause to arrest the defendant for driving while ability impaired by drugs. CPL § 70.10 (2) 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."
When Officer Brewer approached the stopped truck he observed the defendant with drool coming from the left side of his mouth. He also previously saw the defendant asleep in his vehicle that was parked across parking spaces rather than in a particular parking space. He also was aware of the defendant's recent aberrant behavior as described by the store clerk. Based on that there was probable cause to order the defendant from his vehicle. Finally, the officer's observations of the defendant as he walked to the location of the various roadside sobriety tests, which included his being unsteady on his feet and swaying, his speech, which the Officer had difficulty understanding, and the defendant's performance on the roadside sobriety tests provided Officer Brewer with probable cause to arrest the defendant for driving while ability impaired by drugs.
Huntley Hearing.
CPL § 60.45 (1) states that" Evidence of a written or oral confession, admission, or other statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made." The testimony of Officer Brewer was that the defendant was read his Miranda rights and that he waived the rights therein and agreed to speak to the officer. Defense counsel elected not to cross examine the officer in the Huntley hearing. "In People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), the Court concluded that it is the People's burden to establish that a statement was voluntarily made." Based on the testimony presented at the hearing the People have met that burden.
(Gerstenzang § 25:1 at 1169)
Conclusion.
The motion to suppress the stop of the defendant's vehicle is hereby denied. The motion to suppress the arrest the defendant for driving while ability impaired by drugs is hereby denied. Finally the motion to suppress any statements made by the defendant as being involuntarily made is also denied. This constitutes the decision and order of this Court.