Opinion
10110028.
Decided May 9, 2011.
Christine K. Callanan, Esq., Assistant District Attorney.
Thomas A. Corletta, Esq., Attorney for Defendant.
The defendant was charged with four offenses, namely Improper or Unsafe Turn/Without Turn Signal, VTL 1163(a), Operating with a Mobile Cell Phone, VTL 1225-c(2)(a), Per Se Driving While Intoxicated, VTL 1192(2), and Common Law Driving While Intoxicated, VTL 1192(3), on October 24, 2010 at 3:24 A.M. The defendant was given simplified traffic informations directing her to appear in Webster Town Court on November 10, 2010. The defendant appeared on that date with her attorney, where she was arraigned on the charges and released on her own recognizance. As a result of the charge of per se driving while intoxicated, VTL 1192(2), the defendant's license was suspended pending prosecution, pursuant to VTL 1193(2)(e)(7). However, after a Pringle Hearing the defendant was granted a hardship privilege to allow the defendant to drive to and from her employment, school and child care. Defense counsel submitted omnibus motions, pursuant to which probable cause and Huntley Hearings were conducted on March 25, 2011.
Facts of the Case.
The prosecution presented the arresting officer, Mark C. Reed, as its only witness. Officer Reed testified to observing a dark Mazda heading northbound in the eastern lane on Holt Road. Subsequently, the defendant moved into the westerly northbound lane, but did not signal that turn. The defendant then made a u-turn and headed in a southbound direction. The officer also made a u-turn in an effort to follow the defendant's vehicle. The defendant then drove southbound under and past the Route 104 overpass, whereupon she changed lanes after engaging her left turn signal. She then made another u-turn and headed northbound. Officer Reed again made a u-turn and and followed the defendant. During that time the officer observed the defendant on her mobile cell phone. At that time the officer engaged his emergency lights and stopped the defendant's vehicle just south of the Route 104 overpass. The officer approached the defendant's vehicle and asked for her driver's license and registration. During that exchange, Officer Reed observed various physical indicia of intoxication exhibited by the defendant. The defendant agreed to perform various roadside tests. However, prior to performing same, Officer Reed inquired of the defendant if she had any physical impairments. The defendant, in an attempt at joking with the officer, stated "I have a shattered knee and a broken ankle". Upon failing the horizontal gaze nystagmus test, the walk and turn test, the one leg stand test and a positive result on the alco-sensor, the defendant was arrested for driving while intoxicated. The officer testified to reading the Miranda warnings to the defendant. Officer Reed testified that the defendant indicated that she understood her rights, and that she agreed to speak with him. The defendant reportedly stated that she had consumed three drinks containing vodka. However, the people were not able to produce a copy of the actual Miranda warnings at the Huntley hearing. The court held that the term probable cause and reasonable cause as set out in CPL 70.10(2) are interchangeable for purposes of a "probable cause" hearing. The defense objected to the court's finding that the officer had "reasonable cause" rather than "probable cause" to stop the defendant's vehicle. The defense further alleged that there was no basis for the charge of failing to signal. The court held that the Miranda warnings were properly read to the defendant, despite the fact that a copy of the actual Miranda card was not actually entered into evidence at the hearing. The court afforded the defense the opportunity to submit case law to the court if it wanted the court to reconsider its holdings. Both the defense and the People submitted Memorandums of Law subsequent to the hearings. Defense counsel's Memorandum of Law was submitted in the nature of a Motion to Reargue, under CPLR Section 2221(d)(2).
Issues Presented.
Are the terms probable cause and reasonable cause interchangeable?
Did the court misapply Vehicle and Traffic Law Section 1163(a)?
Must the people enter physical evidence of the Miranda warnings at the suppression hearing?Legal Analysis.
A. Probable Cause Hearing. The defense seems to argue that the court applied the wrong standard, i.e. "reasonable suspicion" in holding that the stop of the defendant by Officer Reed was justified. This court did in fact hold after the "probable cause" hearing that there was "reasonable cause" to stop the defendant. People v. Robinson, 97 NY2d 341, 741 N.Y.S.2d 147 (2001) is properly cited by the defendant as setting the standard in this state for stopping a vehicle by a police officer. The Court of Appeals stated that
"We hold that where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate article I, § 12 of the New York State Constitution. In making that determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant."
Id. 349, 151.
The Court of Appeals has defined probable cause as being ". . . at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice. . . ." People v. Carrasquillo, 54 NY2d 248,254, 445 N.Y.S.2d 97,100 (1981).
Reasonable cause is defined by statute as set out in C.P.L. 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 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."
The definitions of both terms are obviously similar. In fact, "The terms reasonable' and probable' are used interchangeably." Gerstenzang, Handling the DWI Case in New York, Section 1:18.
It was this court's finding that there was reasonable cause to stop the defendant's vehicle. There was no finding that "reasonable cause" was equivalent to "reasonable suspicion". The court's finding was that "reasonable cause" was in fact "probable cause". "Because the Vehicle and Traffic Law provides an objective grid upon which to measure probable cause, a stop based on that standard is not arbitrary in the context of constitutional search and seizure jurisprudence." People v. Robinson, 97 NY2d 341,355, 741 N.Y.S.2d 147, 155 (2001). Thus the officer was justified in stopping the defendant's vehicle based on the observed violations of the Vehicle and Traffic Law, to wit: Failure to Signal, V.T.L. 1163(a) and Use of a Mobile Cell Phone, V.T.L.1225-c(2)(a).
B. Vehicle and Traffic Law Section 1163(a) . The defense contends in its Post Hearing Memorandum of Law that the Court misapplied V.T.L. 1163(a). Defense counsel contends in his papers "that even if there was a lack of signal on the first U-Turn' there was no safety concern implicated, now takes on greater weight using the Probable Cause standard." In other words, the defense argues that because there were no other vehicles in the vicinity of the defendant's vehicle, her turn without engaging her left turn signal did not violate V.T.L. 1163(a), since the turn could be made safely. That statute states in pertinent part as follows:
"No person shall turn a vehicle . . . from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided."
This court rejects the assertion of the defense that a turn or a lane change can be made on a public roadway without the appropriate signal under certain circumstances. The prohibition against an unsafe lane change or turn and the requirement of an appropriate signal before any lane change or turn are independent of each other. At the very least, in the instant case, the officer was in his patrol car in the area of defendant's car. Said officer was entitled to notice of the defendant's lane change and u-turn via the required signal. It is the law in New York that
". . . probable cause stops are not based on the discretion of police officers. They are based on violations of law. An officer may choose to stop someone for a minor' violation after considering a number of factors, including traffic and weather conditions, but the officer's authority to stop a vehicle is circumscribed by the requirement of a violation of a duly enacted law. In other words, it is the violation of a statute that both triggers the officer's authority to make the stop and limits the officer's discretion." People v. Robinson, 97 NY2d 341,355, 741 N.Y.S.2d 147,155-156 (2001).
Failure of the defendant to engage her turn signal when changing lanes or making a u-turn was a violation of V.T.L. 1163(a). Her use of a cell phone during that time was violation of V.T.L. 1225-c(2)(a). Observations of both said violations would give Office Reed probable cause to stop defendant's vehicle.
C. Huntley Hearing. Since a copy of the Miranda warnings card was not entered into evidence at the Huntley hearing, nor did the officer testify as to the specific rights read to the defendant, the defense maintains that the People failed to establish the voluntariness of the defendant's statement beyond a reasonable doubt. The arresting officer did in fact testify to reading the defendant the Miranda warnings prior to the questioning of the defendant. Although it was not the actual card used on the night of the arrest, the officer further testified to the rights read to the defendant by reference to a standard Miranda warnings card. It has been held by the Court of Appeals that "In the absence of any proof whatsoever that such reading was or might have been deficient in some particular, the suppression court was warranted in drawing the inference that the constitutional preinterrogation warnings were adequately stated." People v. Gonzalez, 55 NY2d 720,722, 447 N.Y.S.2d 145,146 (1981). Thus the defense must allege that a particular right as set out in the standard Miranda warning was not conveyed to the defendant. In that case the court did not require that any actual physical evidence regarding the Miranda warnings be entered into evidence at the suppression hearing. There is no allegation in this case that the defendant was unaware of a particular right, that should have been read to her as part of the standard Miranda warnings. The court is left with evaluating the testimony of Officer Reed relative to whether he read the Miranda Rights to the defendant. The court finds the officer's testimony on that issue as being very credible. As a result, the statements made to the police after the arrest of the defendant are deemed voluntary.
Conclusion.
The defense motion to suppress all evidence obtained as a result of the stop of the defendant's vehicle is denied. In addition, the motion to suppress statements made by the defendant to the police is denied. This constitutes the decision and order of this court.