Opinion
2016NY063997
12-11-2017
The PEOPLE of the State of New York, Plaintiff, v. Timothy MILLET, Defendant.
For the Defendant: Tacopina & Seigel, by Chad D. Seigel, Esq. For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Katherine Demartini.
For the Defendant: Tacopina & Seigel, by Chad D. Seigel, Esq.
For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Katherine Demartini.
Steven M. Statsinger, J.
Defendant, charged with Operating a Motor Vehicle while Intoxicated, VTL § 1192(3), and Operating a Motor Vehicle while Ability Impaired by Alcohol, VTL § 1192(1), moves to suppress his post-arrest statements, an eyewitness identification, and his refusal to take a chemical test, arguing that all of this evidence was the fruit of an unlawful arrest. See, generally , Dunaway v. New York , 442 U.S. 200, 218–19 (1979) (suppressing statement obtained as fruit of unlawful arrest). The Court concludes, however, that the arrest of the defendant was based on probable cause and that, accordingly, none of the challenged evidence was "fruit of the poisonous tree." Wong Sun v. United States , 371 U.S. 471, 488 (1963). The motion to suppress is accordingly DENIED.
Defendant had previously advanced several additional grounds for suppressing this evidence. On October 19, 2017, the defense withdrew those claims, leaving only the Dunaway issue to be litigated.
I. FINDINGS OF FACT
On October 19, 2017, the Court conducted an evidentiary hearing on defendant's motion. The People called two witnesses, Police Officer Robert Durante and his partner, Police Officer Earnest Hernandez. Officer Durante had been an officer for approximately three and one-half years, and this was his the first time he had made an arrest for driving while intoxicated. H. 5. Officer Hernandez had been on the force for five and one-half years, and had made 170 arrests, some "five or six" for drunk driving. H. 48–49. The Court, having carefully observed the officers' demeanor on the witness stand, fully credits their testimony.
Page references preceded by "H." refer to the transcript of the suppression hearing.
The credible testimony establishes that, at approximately 7:00 p.m. on October 26, 2016, Officers Durante and Hernandez responded to a radio run indicating that a pedestrian had been struck by a vehicle in the vicinity of Pearl and Frankfort Streets, in New York County. H. 6–7; 50. That location proved to be an entrance ramp beneath the Brooklyn Bridge. H. 8; 50. The area was dark, although there was at least some street lighting. H. 25.
The officers observed a late-model Ford S.U.V.—defendant does not dispute that he was the driver—stopped on the ramp, with its engine running and its hood dented. H. 10; 23. An elderly Asian woman was lying in the street in front of the defendant's vehicle; she was bleeding from the back of her head and was being treated by emergency medical personnel. H. 8–9; 51. Durante could see that the woman was cut and scraped. H. 9.
An eyewitness told Durante that she had seen the defendant's S.U.V. strike the pedestrian, and had also seen the defendant "stumble" out of the vehicle. H. 9; 22. Hernandez observed the defendant, who was nearby, H. 58, holding onto a pole, and it appeared to Hernandez that the defendant could not stand up straight. H. 51. Hernandez also noted that defendant had watery eyes. H. 52. Both officers heard the defendant repeatedly say, in substance, "I'm sorry." H. 11; 52. Defendant appeared to be "unsteady" on his feet; when Durante asked him to step to the rear of his vehicle, defendant stumbled. H. 11–12, 37. Hernandez also relayed to Durante—before Durante arrested the defendant—his observations that the defendant seemed unsteady on his feet and had watery eyes. H. 56.
Although Durante candidly admitted that he could not recall whether Hernandez told him this before or after the arrest, H 13–14, the Court specifically credits Hernandez' testimony that the conversation took place before Durante arrested the defendant. H. 55.
Defendant was cooperative with the officers; he gave an account of the accident, in which he admitted that he was driving the S.U.V. and that he had struck a pedestrian. H. 30. He denied having been drinking, however, and told the officers that he had not seen the pedestrian as he was making a left turn onto the Brooklyn Bridge entrance ramp. H. 30; 36.
A different officer offered the defendant a portable breath test. H. 12; 53. Defendant refused the test, after which Durante placed him under arrest. H 12; 53. By this time, both Durante and Hernandez were of the opinion that defendant was intoxicated. H 37, 44; 54. Defendant was later transported to the Seventh Precinct. H 12. Although not adduced at the hearing, as it was not relevant to the question of probable cause, defendant does not dispute that, once at the Seventh Precinct, he was offered—and refused—a Breathalyzer test.
II. CONCLUSIONS OF LAW
Based on the totality of the information that Officer Durante had when he arrested the defendant, the Court concludes that the officer had reasonable cause to believe that defendant was operating a motor vehicle, which is undisputed, and that defendant was in an intoxicated condition when he did so. Defendant's motion to suppress the fruits of that arrest—statements, an identification, and his refusal to take a chemical test—is accordingly denied.
A. Reasonable Cause
A police officer can effectuate a warrantless arrest when he has probable cause or reasonable cause—in New York the terms are interchangeable, People v. David , 44 Misc 3d 1212(A) (Crim. Ct. NY County 2014) —to believe that the suspect has committed a crime, whether or not the crime occurred in the officer's presence. CPL §§ 140.05, 140.10(1)(b). In addition, VTL § 1194(1)(a) authorizes a warrantless arrest for the traffic infraction of driving while ability impaired by alcohol, in violation of VTL § 1192(1), if the officer has reasonable cause to believe that the defendant has committed that offense and the offense is "coupled with an accident or collision in which [the person arrested] is involved."
Reasonable cause "exists if the facts and circumstances known to the arresting officer warrant a prudent [person] in believing that the offense has been committed." People v. Baker , 20 NY3d 354, 359 (2013) (citing People v. Oden , 36 NY2d 382, 384 (1975) ). As long as those facts and circumstances support a "reasonable belief" that the crime has been committed, reasonable cause exists. People v. Maldonado , 86 NY2d 631, 635 (1995). The officer's "reasonable belief" can be based, in whole or in part, on information furnished by another officer, as long as the informant officer himself has "the requisite probable cause." Id. at 636 ; People v. Gittens , 211 AD2d 242, 244–45 (2d Dept. 1995) (there is a "presumption of veracity and accuracy afforded a communication from one police officer to another").
B. Reasonable Cause in DWI Cases
Where, in their totality, the facts available as of the time of the arrest make it "more probable than not that the defendant [was] actually impaired," People v. Vandover , 20 NY3d 235, 239 (2012), an arrest for driving while intoxicated is lawful. An officer's specific determination that there is reasonable cause to believe that a driver was intoxicated can be based on a wide variety of circumstances; for example, the nature of the defendant's driving, including whether there was an accident, and his physical appearance. People v. Hohmeyer , 70 NY2d 41, 43–44 (1987). Additional factors might include the defendant's manner of speech, People v. Sanchez , 54 Misc 3d 133(A) (App. Term. 1st Dept. 2017), and any admissions by the defendant. People v. Cullison , 8 Misc 3d 128(A) (App. Term. 9th and 10th Dists. 2005). A refusal to take a chemical test is "evidence of consciousness of guilt," and therefore can also support a finding of reasonable cause. People v. Baranes , 7 Misc 3d 1025(A) (Crim Ct NY County 2005). Finally, an officer's opinion as to whether the defendant was intoxicated is also a relevant consideration. People v. Gingello , 181 Misc 2d 163, 165 (Rochester City Court 1999), abrogated on other grounds by People v. Blair , 98 NY2d 722, 724 (2002) ; People v. Wesley , 151 AD3d 1270 (3d Dept. 2017).
C. Officer Durante Had Reasonable Cause to Arrest the Defendant
The People argue that the "totality of the circumstances"—the Officer Durante's own observations, along with the information provided by the eyewitness, the defendant himself and other officers—gave Durante reasonable cause to arrest the defendant. Demartini Aff. ¶¶ 9–11; 17. Defendant, for his part, argues that the record is somehow unclear as to whether Officer Durante had acquired enough relevant information before he placed the defendant under arrest, as opposed to afterwards. See, e.g. , Siegel Mem. at 4, 5; 10. To the defendant, the "only" facts that Officer Durante had acquired before placing the defendant under arrest were that the defendant was "clearly emotional after being involved" in an accident with a pedestrian, had watery eyes, repeatedly apologized, stumbled when exiting his car, and "kind of" stumbled "momentarily thereafter in the dark." Seigel Mem. at 16.
Nevertheless, the Court readily concludes that Officer Durante had reasonable cause to believe that the defendant, who indisputably had been driving, was either intoxicated or impaired by alcohol at the time, and thus that the officer had reasonable cause to arrest him. That reasonable cause arose from the totality of the information that the officer developed through own observations, along with that supplied to him by the eyewitness, the defendant, and the arresting officer's partner, Officer Hernandez. The Court disagrees both with the defendant's view of the record and the conclusions that the defendant asks the Court to draw from it.
In their totality, the facts that the officer possessed at the time he arrested the defendant led the officer to believe, and reasonably so, that it was more probable than not the defendant was driving while intoxicated, as indicia of several of the factors of intoxication enumerated above were present to a sufficient degree in this case.
1. The Accident
First, Officer Durante knew that defendant, while driving, had seriously injured a pedestrian. Both an eyewitness and the defendant told the officer that the defendant had struck the pedestrian with his vehicle. Contrary to the defendant's contention, that neither the witness nor the defendant specifically told the officer that the defendant was driving recklessly or erratically does not negate the significance of this fact as a sign of intoxication. Seigel Mem. at 18. Defendant was driving a vehicle that struck and injured a pedestrian. This was, in and of itself, a fact that the officer could legitimately rely on, even if he knew nothing more about the how the defendant was driving.
2. Manner of Speech
Next, Officer Durante himself observed defendant's repetitive speech pattern, and reasonably viewed that as a sign of intoxication. As to this, the Court notes that any of a range of suspect speech patterns can give rise to reasonable cause that a suspect is intoxicated, even if the suspect's speech is not obviously slurred. For example, in People v. Crane , 156 AD2d 704 (2d Dept. 1989), "rambling" speech—a word that can fairly characterize defendant's manner of speech in this case—was a sign of intoxication. See also People v. Blair , 98 NY2d 722, 723 (2002) (citing "impaired speech" as a sign of intoxication); People v. Skinner , 284 AD2d 906, 907 (4th Dept. 2001) (same). To be sure, the officer was also aware that the defendant had said that he had not been drinking, but the officer was not required to accept this self-serving statement as true. E.g. People v. Gonzalez , 143 AD2d 681, 682 (2d Dept. 1988).
3. Physical Appearance
Durante's observations of defendant's physical appearance, and the reports about it that he received before he arrested the defendant, legitimately added to the reasonable cause determination. Durante himself noted that the defendant was "unsteady" on his feet and stumbled as he walked to the rear of his vehicle. Moreover, the eyewitness told Durante that she saw the defendant stumble out of his vehicle, and Hernandez noticed both that it appeared that the defendant had difficulty standing and had watery eyes, information that he conveyed to Durante before the arrest. See, e.g. People v. Springs , 8 Misc 3d 133(A) (App. Term. 2d and 11th Dists. 2005) ("unsteady gait" and "watery eyes" signs of intoxication); People v. Fenti , 57 Misc 3d 471 (Just. Ct. 2017) (same); People v. Wyatt , 153 AD3d 1371 (2d Dept. 2017).
While defendant endeavors to explain away these facts as merely the defendant's natural physical or emotional reaction to having been involved in a traffic accident, Seigel Mem. at 22, it was reasonable for Officer Durante to see them differently.
4. Defendant's Refusal to take a Portable Breath Test
Lastly, Officer Durante did not place the defendant under arrest until after he knew that the defendant had refused a portable breath test. Baranes , 7 Misc 3d at 1025(A). The Court specifically credit's Durante's testimony was present on the scene when the defendant was offered and refused the test, and that he was aware of this before he made the decision to arrest the defendant, and rejects defendant's contention that the record is somehow unclear as to when Durante learned of the refusal. Seigel Mem. at 12.
The Court does agree with the defendant, however, that the arresting officer did not notice the odor of alcohol coming from the defendant until after the arrest. H. 35. But the Court has not included this fact in its conclusion that the officer had probable cause to arrest the defendant.
--------
5. Conclusion
These facts, together, indeed made it "more probable than not that the defendant [was] actually impaired," Vandover , 20 NY3d at 239, and accordingly the arrest was lawful. Indeed, courts have upheld a finding of probable cause on far less than this. See, e.g. , People v. Collins , 70 AD2d 986 (3d Dept. 1979) (where police saw "defendant resting his head on the steering wheel upon property where he had no permission to be" and "he smelled of intoxicants," the facts "far exceed[ed] the amount necessary for probable cause for concluding defendant was intoxicated."). Here, the available facts led Officer Durante to formulate the opinion that the defendant was intoxicated, and that belief was reasonable. Gingello , 181 Misc 2d at 165 ; Wesley , 151 AD3d at 1270.
D. Defendant's Cases are Inapposite
Defendant devotes considerable energy to cataloging cases where there was more evidence of intoxication available to the arresting officer than there was here. Seigel Mem. at 19–21. And indeed there are many such cases. But those cases are immaterial, as they do not in any way stand for the proposition that the information that Durante had in this particular case was insufficient to establish reasonable cause for the arrest.
One case cited by the defendant, however, requires a separate discussion. Defendant relies heavily on People v. Alberto , 22 Misc 3d 786 (Dist. Ct. Suffolk County 2008), a case where the court found that the arresting officer in a DWI case lacked probable cause. That case is readily distinguishable. There, a police officer responded to the scene of an accident, but had no information as to whether the defendant had caused it. Id. at 790. Here, by contrast, the arresting officer knew that the defendant had caused the accident. In addition, in Alberto , there was a reasonable view of the evidence that defendant's physical condition—bloodshot and watery eyes—was caused by the accident itself: he had sustained a head injury and his airbag had deployed. Id. Here, however, there was no convincing alternative explanation for the defendant's difficulty in walking. This was a low-speed, low impact, one-car traffic accident and defendant was indisputably not its victim. Finally, according to the court in Alberto , the only remaining, legitimate indicia of intoxication was the "strong" of alcohol on the defendant's breath, which, to that court, was "not sufficient, in itself" to support a finding of probable cause. Id. at 788, 790.
As to this last point, this Court disagrees with Alberto . To this Court, a police officer might readily have reasonable cause to arrest a motorist for driving while intoxicated when the officer knows that the driver has been involved in an accident and there is a strong order of alcohol emanating from the driver's breath. E.g. , People v. Cullison , 8 Misc 3d 128(A) (App. Term 9th and 10th Dists. 2005) ; People v. Alshoaibi , 273 AD2d 871 (4th Dept. 2000) ; People v. Scalzo , 139 Misc 2d 539 (Nassau County Court 1988) ; People v. Camagos , 160 Misc 2d 880 (Crim Ct Queens County 1993).
But, in any event, the Court also notes that all of the cases relied upon in Alberto for the proposition that an accident and the odor of alcohol are not enough are particularly unpersuasive, as each involved appellate view of the sufficiency of the trial evidence, and not of a probable cause determination. See People v. Haggman , 175 AD2d 502 (3d Dept 1991) ("The primary question presented on this appeal is whether defendant's conviction[ ] of the misdemeanor of driving while intoxicated ... [is] against the weight of the evidence."); People v. St. John , 6 Misc 3d 127(A) (App. Term 9th and 10th Dists. 2004) ("The evidence adduced at trial was insufficient to warrant the finding that defendant's consumption of half a glass of beer caused her to be incapable of operating her vehicle as a reasonably prudent driver."); People v. Wenz , 12 Misc 3d 134(A) (App. Term 9th and 10th Dists. 2006) ("The evidence was also legally insufficient to establish defendant's guilt beyond a reasonable doubt of driving while impaired"); People v. Belkah , 21 Misc 3d 136(A) (App. Term 9th and 10th Dists. 2008) ("we find the trial proof insufficient to support defendant's conviction of driving while ability impaired"). Given this, the Court declines to follow Alberto here.
E. Probable Cause Existed Even Under the Defendant's Restricted, and Incorrect, View of the Facts
Finally, the even if the defendant were correct that the "only" facts that Officer Durante had acquired before placing the defendant under arrest were that the defendant was "clearly emotional after being involved" in an accident with a pedestrian, had watery eyes, repeatedly apologized, stumbled when existing his car, and "kind of stumbled momentarily thereafter in the dark," Seigel Mem. at 16, the Court's ruling would not change. These facts—even absent the defendant's refusal to take a portable breath test, and the knowledge that defendant's eyes were also watery—facts that the defendant claims that Officer Durante might not have learned until after the arrest (although the Court has concluded otherwise) would still have provided the officer with a reasonable belief that the defendant had committed the crime of driving while intoxicated. Just those facts, standing alone, would still have established that it was "more probable than not that the defendant [was] actually impaired." Vandover , 20 NY3d at 239.
F. Conclusion
For the foregoing reasons, the Court concludes that the arrest of the defendant was supported by reasonable cause.
III. CONCLUSION
Defendant's motion to suppress is denied.
This constitutes the Decision and Order of the Court.