Opinion
14-06-0134
02-03-2015
The People of the State of New York, v. James J. Murphy, Defendant.
Serino, MacKay & Berube, PLLC Richard A. Berube, Esq., Of Counsel Attorneys for Defendant 12 Walker Road Poughkeepsie, New York 12603 William V. Grady, Esq. Jessica Z. Segal, Esq., Of Counsel Dutchess County District Attorney 236 Main Street Poughkeepsie, New York 12601
Serino, MacKay & Berube, PLLC
Richard A. Berube, Esq., Of Counsel
Attorneys for Defendant
12 Walker Road
Poughkeepsie, New York 12603
William V. Grady, Esq.
Jessica Z. Segal, Esq., Of Counsel
Dutchess County District Attorney
236 Main Street
Poughkeepsie, New York 12601
David L. Steinberg, J.
The defendant, James J. Murphy, is charged with Aggravated Driving While Intoxicated [VTL §1192 (2)(AA), Driving While Intoxicated [VTL §1192 (3)], Failing to Keep Right [VTL §1120(A)] Moving from Lane Unsafely [VTL §1128(A)], and Following Too Closely [VTL §1129(A)] With the consent of the People, pre-trial hearings were ordered to determine defendant's motion to suppress. On January 21, 2015, a Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including chemical test results and statements.
At the hearing, the arresting officer, Deputy Sheriff Neil Stuart testified. After listening to and observing the demeanor of Deputy Stuart, the court finds his testimony to be credible and makes the following findings of fact:
Findings of Fact
On June 13, 2014 at about 10:30 p.m., Deputy Stuart was on patrol in Poughkeepsie when he was notified to proceed to the area of Route 9G in the Town of Hyde Park. A Dutchess County Correction Officer, J. Capalbo had called in a report that an individual was observed driving a car all over the road at that location. Deputy Stuart personally spoke to the witness en route. Upon his arrival on Route 9G, Deputy Stuart, while proceeding northbound, observed a southbound vehicle cross the double yellow line in the middle of the road and also cross over the fog line on the side of the road. The deputy proceeded up to Haviland Road where he turned around to drive southbound towards the vehicle. When he caught up to the vehicle, it still was weaving back and forth. The vehicle then put his left directional signal on and made a left hand turn from Route 9G onto Creek Road, coming to a stop along a gravel area at Joseph's Restaurant.
Deputy Stuart approached the stopped vehicle on the driver's side. As he did so, he smelled an odor of alcohol that became stronger as the driver spoke in slurred speech, and also noticed glassy eyes. The driver was the defendant, James J. Murphy. Deputy Stuart asked him several questions. He replied he had come from a bar in Saugerties and was heading to meet a friend on Route 44 in the Town of Poughkeepsie. When asked if he had been drinking, he said he had had one 16 oz. drink of Sprite (or soda) and vodka. No Miranda rights were given to the defendant at the scene.
At that point, Deputy Stuart asked defendant to exit his vehicle to perform several field sobriety tests. This occurred on Creek Road in a well-lit paved area.
Defendant was first given the Horizontal Gaze Nystagmus test. The defendant failed the test in that his eyes lacked smooth pursuit at maximum deviation. His eyes had sustained nystagmus in both eyes.
On the second test, the Walk and Turn test, Mr. Murphy initially lost his balance and also began the test too soon. In walking nine steps, he missed the heel to toe component three times down and four times back on the walk. He also had to raise his arms.
On the One Leg Stand test, as defendant counted to "12", he put his foot down four times, visibly swayed, and had to use his arms for balance.
A Preliminary Breath Test was administered in which defendant tested positive for the consumption of alcohol.
Based upon the three field sobriety tests and the preliminary breath test, Deputy Stuart concluded that defendant was intoxicated and placed him under arrest at 10:53 p.m. He believed defendant was intoxicated based upon his personal and professional experience. He had observed many persons, both professionally and socially, who had consumed alcohol and became intoxicated. He has also observed people who drank alcohol and did not become intoxicated. He had been a member of the Sheriff's Office since November, 2001 and while a member of the "Stop DWI" Unit, he had personally made many arrests for Driving While Intoxicated.
After he had been placed under arrest, defendant was taken to the Sheriff's Office where he was advised of his constitutional rights at 11:14 p.m. He signed a waiver form and answered questions, stating, once again, he was coming from Saugerties and heading to a bar in the Town of Poughkeepsie. He admitted, somewhat differently from his roadside statement, to drinking a vodka on the rocks in a tumbler glass. He denied to the deputy he was injured or ill. When asked when he had last eaten and slept, he stated he had last eaten a sandwich and had slept 8 hours the previous night.
Conclusions of Law
At a Mapp/Dunaway/Huntley hearing where a defendant challenges the legality of a seizure, along with statements and other evidence allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86 [1965]. 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. People v. Berrios, 28 NY2d 361 [1971]. The People must prove the voluntariness of defendant's statement beyond a reasonable doubt. People v. Anderson, 69 NY2d 651 [1986]; People v. Huntley, 15 NY2d [1965].
Probable cause or reasonable cause to arrest is a common sense standard, which has emerged from the case law and has been statutorily defined by CPL §70.10(2). The terms "reasonable" and "probable" are used interchangeably.
"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 legal standard for determining probable cause is set forth in People v. Carrasquillo, 54 NY2d 248 [1981] in which the Court of Appeals stated:
In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such belief must not only be reasonable, but it must appear to be 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. 54 NY2d, supra at 252 [1981] See also, People v. Vandover, 20 NY3d 235 [2012]
A finding of probable cause does not require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case. Rather it need merely appear more probable than not that a crime has taken place and that the one arrested is the perpetrator. People v. Hill, 146 AD2d 823, 824 [3d Dept 1989]; see People v. Attebery, 223 AD2d 714,715 [2d Dept 1996]. Moreover, in determining whether a police officer has probable cause for an arrest, the emphasis should not be narrowly focused on any single factor, but on an evaluation of the totality of circumstances, which takes into account "the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents." People v. Wright, supra, 8 AD3d 304, 306-307 (2d Dept 2004), People v. Bothwell, 261 AD2d 232, 234 [1st Dept 1999], quoting People v. Graham, 211 AD2d 55, 58-59 [1st Dept 1995]. In making the determination to arrest, the officer is not obligated to eliminate all possible innocent explanations for incriminating facts [ see, People v. Mercado, 68 NY2d 874, 877 [1986]; People v. Daye, 194 AD2d 339, 340 (1st Dept., 1993)]. Moreover, "[a] party may act with probable cause even though mistaken...if the party acted reasonably under the circumstances in good faith." People v. Colon, 60 NY2d 78, 82 [1983]; Villalobos v. County of Nassau, 15 Misc 3d 135(A), 839 NYS.2d 437 [App. Term, 9th and 10th Jud. Dists. 2007].
In People v. Farrell, 89 AD2d 987 [2nd Dept., 1982], the Appellate Division, Second Department articulated the reasonable cause standard as it applies to drinking and driving offenses. The inquiry is:
[W]hether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor.
89 AD2d, supra at 988 (2nd Dept., 1982)
In People v. Bratcher, 165 AD2d 906 [3rd Dept 1990], lv. den. 77 NY2d 958 [1991] the Appellate Division, Third Department concluded that there was a valid arrest for driving while intoxicated where the police officer observed defendant's car weaving in its own lane and crossing over into the opposite lane of travel. Thereafter, the officer had "ample opportunity" to observe that the defendant had red, watery eyes, slurred speech, a strong odor of alcohol on his breath, a staggering walk, and a sway while standing.
In People v. McCarthy, 135 AD2d 1113 [4th Dept 1987], probable cause was established where the defendant's eyes were bloodshot, his speech slurred, and there was a strong odor of alcohol coming from the car. Also, the defendant was given a roadside Alco-Sensor test with positive results.
In People v. Asher, 16 Misc 3d 89, [App. Term, 2d Dept 2007], the Court held that probable cause was established to uphold an arrest for Driving While Intoxicated based on credible testimony that the defendant displayed signs of intoxication, failed field sobriety tests and admitted to having had two glasses of wine.
In People v. Gingras, 22 Misc 3d. 22 [App. Term, 2d Dept., 2008], the defendant was arrested for Driving While Intoxicated. The Justice Court granted suppression of evidence and the People appealed. In reversing and denying defendant's motion to suppress evidence, the Appellate Term held,
" .[w]e find the People established probable cause for defendant's arrest, at the very least, for driving while impaired in violation of VTL §1192(1), although defendant was not specifically so charged. The legality of an arrest .is not conditioned upon whether the arresting officer specified the correct subdivision of VTL §1192, or upon his belief as to which subdivision has been violated. All that is required is that [the officer] have had a reasonable cause to believe that defendant had violated VTL §1192 [citations omitted]." Gingras has been followed by numerous Appellate Term decisions that have reaffirmed the principle that probable cause to arrest need only be, at the very least, for any section of VTL 1192, including driving while impaired. People v. Sieber , 40 Misc 3d 133(A) [App. Term, 2d Dept 2013]; People v. Cosimano, 40 Misc 3d 132 (A) [App. Term, 2d Dept 2013]; People v. Freeman, 37 Misc 3d 142 (A) [App. Term, 2d Dept 2012]; People v. Bici , 32 Misc 3d 136(A) [App. Term, 2d Dept 2011]; People v. Andrews, 30 Misc 3d 133 (A) [App. Term, 2d Dept 2010]; People v. Crane, 26 Misc 3d 134 (A) [App. Term, 2d Dept 2010].
A traffic stop constitutes a limited seizure of the person of each occupant of the vehicle which, to be constitutional, must be justified at its inception. People v. Banks, 85 NY2d 558, 562 [1995], cert. den. 516 U.S. 868 (1995). The law is clear "that the police may lawfully stop a vehicle based on a reasonable suspicion that there has been a Vehicle and Traffic violation" People v. Rorris, 52 AD3d 869, 870 [3d Dept.], lv. denied
11 NY3d 741 [2008]. Here, Deputy Stuart's observation of the defendant crossing the double yellow line several times, as well as the fogline, and weaving back and forth provided the officer with a lawful basis for stopping the vehicle. People v. Robinson, 97 NY2d 341 (2001); People v. Wright, 42 AD3d 942 (2d Dept., 2007); VTL §1120(A); VTL §1128(A); VTL §1129(A).
Further evidentiary support to stop defendant's vehicle was provided by Deputy Stuart's communication with Correction Officer Capalbo. Pursuant to statute, "hearsay evidence is admissible to establish any material fact" at a pretrial suppression hearing. CPL 710.60[4]; People v. Edwards, 95 NY2d 486, 491 [2000]. Thus, a police witness at a suppression hearing may establish probable cause by personal knowledge, as well as information supplied by fellow officers" People v. Edwards, supra; People v Mitchell, ___AD3d ___, 2015 NY Slip Op 00786 [2d Dept 2015].
Upon the facts adduced at the hearing, the court concludes probable cause was established to arrest defendant for Driving While Intoxicated following his lawful stop and detention. People Ryan, 23 Misc 3d 130(A) [App. Term, 2d Dept 2009]; People v. Gingras, supra. Probable cause was based upon the Deputy Stuart's observation of the indicia of alcohol consumption such as the odor of alcohol on the breath, and glassy eyes, defendant's failure to pass three field sobriety tests, a positive preliminary breath test reading, and his admissions that he had consumed an alcoholic drink.
With respect to a roadside Alco-Sensor screening test, it has been held sufficiently reliable for use in determining the presence of alcohol on a pass/fail basis, and to be a factor in a determination as to whether a police officer has probable cause to arrest an individual for driving while intoxicated. People v. Thomas, 121 AD2d 73 (4th Dept. 1986), aff'd 70 NY2d 823 [1987]; Smith v. Commissioner of Motor Vehicles, 103 AD2d 865,866 [3rd Dept., 1984]; People v. Schnook, 16 Misc 3d 1113(A), 2007 WL 2108043 [Suffolk Dist. Ct., 2007]. These cases stand for the proposition that a properly functioning, properly administered Alco-Sensor test can help establish probable cause for the arrest of a DWI suspect, but it cannot, in and of itself, establish probable cause for such arrest. Gerstenzang & Sills, §7:14, "Handling a DWI Case in New York ? 2014-2015 Edition (Thomson-Reuters, 2014). Such an Also-Sensor screening test is not admissible at trial in a DWI prosecution because the test results are not sufficiently reliable to prove intoxication (i.e. the blood alcohol content reading). People v. Thomas, supra.
In sum, the Court finds that sufficient evidence existed in this case to provide the officer with reasonable grounds to believe that defendant had been driving in violation of VTL §1192, and thereby provided probable cause for the defendant's arrest for Driving While Intoxicated. The evidence obtained as a result of the arrest was, therefore, lawfully obtained.
A defendant who has been temporarily detained pursuant to a routine traffic stop, including suspected driving while intoxicated offenses, is not considered to be in custody for Miranda purposes. People v. Parris, 26 AD3d 393 [2d Dept.], lv. den. 6 NY3d 851 [2006]; People v. Myers, 1 AD3d 383 [2d Dept. 2003], lv. den. 1 NY3d 631 [2004]; People v. MacKenzie, 9 Misc 3d 129(A), [App. Term, 9th and 10th Jud. Dists. 2005]. A reasonable initial interrogation during such stop is therefore held to be merely investigatory and does not require Miranda warnings. See, People v. Mackenzie, supra.; People v. Mathis, 136 AD2d 746 [2nd Dept], lv. den., 71 NY2d 899 [1988]. Moreover, Miranda warnings are not required before the administration of performance tests. People v. Hager, 69 NY2d 141 [1987]; People v. Myers, supra at 383.
Deputy Stuart's temporary roadside detention of the defendant, after stopping the defendant's vehicle for several traffic infractions, was permissible and non-custodial in nature, and he was not required to administer Miranda warnings before conducting a roadside investigation.
The Court accordingly determines that defendant's roadside statements made shortly before his arrest were voluntary beyond a reasonable doubt and admissible at trial.
Similarly, his post-arrest statements at the Sheriff's Office, preceded by Miranda warnings, were voluntarily made and are admissible.
Based upon the foregoing findings of fact and conclusions of law, it is hereby
ORDERED that defendant's motion to suppress physical evidence, chemical test results, and statements is denied in all respects.
______________________________________
Hon. David L. Steinberg
Hyde Park Town Justice
Dated: Hyde Park, New York
February 3, 2015