Opinion
No. CR–01079–15.
05-10-2016
The PEOPLE of the State of New York v. Mark PEFFER, Defendant.
P. David Soares, Albany County District Attorney, (David J. Szalda, Esq., of Counsel), Attorney for the People. John J. Doherty, Esq., Attorney for the Defendant.
P. David Soares, Albany County District Attorney, (David J. Szalda, Esq., of Counsel), Attorney for the People.
John J. Doherty, Esq., Attorney for the Defendant.
ANDRA ACKERMAN, J.
The Defendant is charged with Driving While Intoxicated in violation of section 1192(3) of the Vehicle and Traffic Law ; Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of section 511(1)(a) of the Vehicle and Traffic Law ; Operating Without Insurance, in violation of section 319(1)(u) of the Vehicle and Traffic Law ; Unlicensed Operator, in violation of section 509.1 of the Vehicle and Traffic Law; Refusal to Take a Breath Test, in violation of section 1194(1)(b) of the Motor Vehicle and Traffic Law; Operating While Registration Expired, in violation of section 512 of the Vehicle and Traffic Law and Unsafe Starting, in violation of section 1162 of the Vehicle and Traffic Law. The defendant has asserted that the initial vehicle-traffic stop was improper, thus requiring the suppression of all the evidence subsequently obtained. The defendant has additionally asserted that there did not exist probable cause for the arrest of the defendant and that all statements made by the defendant to the Cohoes Police Department on May 30, 2015, that are subject to CPL 710.30, were made involuntarily. On March 25, 2016, the Court held a hearing to determine whether the police had information sufficient to support a reasonable belief that the driver of the vehicle committed a traffic infraction and therefore to stop the defendant's motor vehicle; whether the police had probable cause to arrest the defendant and the voluntariness of the statements made to police by the defendant. From the credible evidence educed at the hearing, the Court finds the following relevant facts:
Officer Matthew Orton, an officer with a total of twenty three years in law enforcement and Officer James Murphy with over ten years experience as a police officer, both testified that they were on patrol on May 30, 2015 at approximately 11:00 p.m., in the area of Main Street and Columbia Street intersection, in the City of Cohoes, County of Albany, State of New York. They were in separate patrol vehicles. Officer Orton was parked near Officer James Murphy and they were discussing the evenings events. It had been raining heavily earlier that evening and was still lightly drizzling out. The roads were wet and slick. During this time, both officers observed a vehicle at this intersection, stopped at a red light, revving its engine loudly while cars were driving through the intersection in the opposite lane. Next the Officers heard the loud squealing of the vehicles tires as it peeled through the intersection and continued through the intersection accelerating rapidly through the slick road. Officer Orton testified that, based upon his training, the estimated speed of the vehicle was approximately 40 mph within seconds in a 30 mph zone. He also testified that his vehicle did not have a radar device. Officer Murphy testified that his vehicle did have a radar device, however, at the time of this incident, it was not turned on. Officer Orton activated his lights and siren and initiated a traffic stop blocks down from the intersection. The operator of the vehicle made a turn off the main road before pulling over and did not use his directional signal prior to making the turn and pulling the vehicle over.
Officer Murphy followed and was the officer who first approached the driver of the vehicle, the defendant, Mark Peffer. The defendant initially got out of his vehicle and had to be asked two or three times by Officer Murphy to return to his vehicle and then roll down his window. At which time the defendant complied. At 11:07 p.m., the make, model and plate for the vehicle that the defendant was driving was transmitted to dispatch and recorded on a CD (P–2). At 11:08 p.m., dispatched informed both police officers that the plate returned to Mark Peffer, the defendant, and that his license was currently suspended for insurance not in effect (P–2). Upon approaching the vehicle, Officer Murphy saw that there were two additional individuals in the vehicle, one in the front passenger side and one in the back seat. Officer Murphy, upon approaching the driver's side window observed an odor of alcohol beverage; the defendant's face was red; he had blood shot eyes and his speech was slurred. He asked the defendant where he was coming from to which the defendant replied that he was coming from a bar in Watervliet and that he was taking his two friends home to Cohoes and that he did not drink any alcohol that evening. Officer Murphy then asked the defendant to step out of the vehicle. When the defendant complied, Officer Murphy observed that the defendant was leaning on the vehicle and it appeared to him that the defendant's coordination and balance were off. Upon conversing with the defendant about his suspended registration, the Officer could smell the odor of alcohol coming from the defendant's breath. Based upon these observations Officer Murphy proceeded to initiate the standard field sobriety tests. Officer Murphy testified to his prior training in this area as well as his current certification as a trainer for administering standard field sobriety tests. The first test Officer Murphy administered with the Horizontal Gaze Nystagmus test which the defendant failed entirely. Officer Murphy then initiated the Walk and Turn test and the defendant failed six out of eight attempts. Officer Murphy then initiated the One Leg Stand test and the defendant failed each of the three attempts. He then initiated the finger count test which the defendant passed. He then initiated the alphabet test, which the defendant failed. Officer Murphy then asked the defendant to blow into a pre-screen device. The defendant, at first did not blow any air into the device at all. The defendant's second attempt provided an inadequate sample and Officer Murphy observed that the defendant was not making any effort to provide an adequate sample. A third attempt was made and again, the defendant would not blow enough air through the device and it was then taken as a refusal. Based upon the observations of both officers and the defendant's performance on the field sobriety tests, the defendant was placed under arrest for Driving While Intoxicated, in violation of section 1192.3 of the Vehicle and Traffic Law as well as a number of additional violations of the Vehicle and Traffic Law listed above. The defendant was then read his Miranda Rights from a written form that was entered into evidence (P–1) and after he was read his Miranda Rights, the defendant verbally stated that he did understand them. He was then asked by Officer Murphy if he would be providing a breath sample for them that evening and the defendant's response was “I am not sure” and that he wanted to speak to his attorney before blowing into the device. Upon arrival at the police station, the defendant was provided with access to a phone where he made three separate attempts to speak to his attorney between 11:39 p.m. and 11:57 p.m.. The defendant left one voice mail and then made three additional calls that went un-returned (P–2). The “DWI Refusal Warnings” were read to the defendant from a written form that was entered into evidence (P–3). They were read to him three separate times between 11:29 p.m. and 11:51 p.m. that evening. Each time they were read to the defendant, he stated “no” that he would not submit to a chemical test to determine the alcohol or drug content of his blood.
“A traffic stop is a seizure and is permissible when a police officer has probable cause to believe that the driver of the automobile has committed a traffic infraction. Probable cause requires information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place.” (People v. Guthrie, 25 NY3d 130, 133 [2015], See also, People v. Rorris, 52 AD3d 869 [3d Dept.2008] ). “The alternatives to upholding a stop based solely upon reasonable cause to believe a traffic infraction has been committed put unacceptable restraints on law enforcement. This is so whether those restrictions are based upon the primary motivation of an officer or upon what a reasonable traffic police officer would have done under the circumstances. Rather than restrain the police in these instances, the police should be permitted to do what they are sworn to do, uphold the law.” (People v. Robinson, 97 N.Y.2d 341, 353 [2001] ).
In the instant case, two separate police officers, acting independently, credibly testified that they observed the defendant revving his engine loudly while stopped at a red light as other cars were passing through the intersection, then the defendant peeled out into the intersection, accelerating rapidly, on slick roads approximately 10 miles over the speed limit. Both officers testified that they stopped the defendant for what they reasonably believed to be consistent with violations of sections 1162 and 1180(d) of the Vehicle and Traffic Law. Defense counsel argues in his memorandum of law that the testimony with respect to the stop as it pertained to excessive speed of approximately 40 mph in a 30 mph zone is “patently absurd”. This Court disagrees. A stop does not violate the Federal or New York State constitutions when there exists articulable, credible facts that establish probable cause to believe a traffic violation has occurred. (People v. Robinson, 97 N.Y.2d 341, 349 [2001] ).. The existence of probable cause, not the issuance, or non-issuance, of a traffic ticket, determines the lawfulness of a stop. “[T]he decision by a police officer to stop a vehicle is reasonable when supported by probable cause that a traffic violation has occurred ...” (People v. Ferraiolo, 309 A.D.2d 981, 982 [3d Dept 2003] ). The fact that the police officer used his discretion and did not issue a ticket for the violation as was the case in Ferraiolo or, as in the case at hand with respect to the excessive speed, does not render the stop unlawful. This Court finds the Officers testimony to be credible and their views under the circumstances to be reasonable.
Defense counsel argues that the present case is “practically identical” to the fact pattern in People v. Rebecca, 37 Misc.3d 1233(A) 2012. The fact pattern in Rebecca case is as follows:
Officer C. testified that on July 28, 2012, at about 1:15 am, he was sitting in a marked patrol vehicle at the intersection of South Main Street and Bristol Street in the City of Canandaigua waiting for a red light to turn green. The only other vehicle at this four-way intersection was a 2010 Hyundai waiting at the red light directly across the intersection. When the light changed colors, the Hyundai (later determined to be driven by the defendant) “squealed its tires” and “sped through the intersection.” There were no pedestrians in the vicinity, there was no other traffic in the vicinity, the Hyundai did not “peel out” from the intersection, the squealing noise was not loud, the Hyundai did not exceed the speed limit as it sped past the officer through the intersection, the Hyundai stayed in its own lane of traffic, and there was no evidence that the movement of the Hyundai was not reasonably safe. Id.
In the present case, there is credible evidence that at the time of this occurrence, there was other traffic in the vicinity; he was revving the engine loudly while stopped at the intersection; at least one pedestrian in the vicinity; the vehicle “peeled out” from the intersection, on slick roads and exceeded the speed limit by approximately 10 miles per hour. None of these facts were present in Rebecca. This Court finds the facts in the present case to be distinguishable from Rebecca, and defense counsels arguments to the contrary un-persuading.
Defense counsel additionally argues that because he was successful at the refusal hearing on July 6, 2015, wherein the Administrative Law Judge found that the arresting officer failed to establish reasonable grounds to believe that the defendant operated a motor vehicle in violation of section 1162, that this Court should follow the same ruling. This Court, respectfully disagrees.
This Court finds that the People have met their burden for the purposes of this hearing and established probable cause to believe the driver committed the traffic infractions 1162 and 1180(b) of the Vehicle and Traffic Law (People v. Robinson, 97 N.Y.2d 341, 254 [2001] ). The existence of probable cause, not the issuance, or non-issuance, of a traffic ticket, determines the lawfulness of a stop. On cross examination, both officers acknowledged that the defendant was not charged with speeding and that they are not required to issue a ticket for every traffic infraction they observe. The observation of the defendant's excessive speed was testified to at hearing, documented both in the bill of particulars and recorded on (P–2). This Court finds that the officers not only articulated credible facts establishing the reasonableness of their belief that the defendant violated the Vehicle and Traffic Law, that they also had probable cause to stop the vehicle based upon their observations. (People v. Guthrie, supra ).
Defense counsel next argues that the officer lacked probable cause for the defendant's arrest on the charges of driving while intoxicated, and thus seeks dismissal of that charge. The Court must again disagree. A police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime or offense in his presence (CPL § 140.10 ). In the instant case Officer Murphy observed the defendant operate his vehicle consistent with the facts outlined above. When he spoke with the defendant he smelled an odor of an alcoholic beverage; noticed his face was red; his eyes were blood shot and his speech was slurred. Officer Murphy asked the defendant where he was coming from and the defendant responded “from a bar in Watervliet.” When he asked the defendant to step out of the vehicle, he observed the defendant's unstable gait. Probable cause for a driving while intoxicated arrest exists if the arresting officer can demonstrate reasonable grounds to believe the defendant had been driving in violation of VTL 1192. (See, People v. Kowalski, 291 A.D.2d 669 [3rd Dept.2002] ); People v. Poje, 270 A.D.2d 649 [3d Dept 2000), lv. den. 95 N.Y.2d 802 [2000] ). Probable cause need not always be premised upon the performance of field sobriety tests (People v.. Kowalski, 291 A.D.2d 669 [3rd Dept.2002] ), although each of the tests were administered here and the defendant failed all but one of them.
The Court accordingly finds that the defendant's stop and arrest were based on probable cause, and the evidence obtained as a result thereof is not subject to suppression on that ground.
On the matter of the voluntariness of the defendant's statements to the arresting officer prior to his arrest for Driving While Intoxicated, the Court finds beyond a reasonable doubt that the statements were given in response to a permissible request for information; that they were not the result of force or threats of force, or any other improper conduct or undue pressure; that they were not the result of any promise or statement of fact by a public servant or a person acting under direction or in cooperation with a public servant; and, that they were not obtained in violation of any constitutional rights of the defendant. (People v. Witherspoon, 66 N.Y.2d 973, [1985] ). The defendant was not in custody when the statements were made, and circumstances surrounding the giving of the statements, described at length above, demonstrate to the Court that the giving of the Miranda warnings was not required, prior to receipt of the defendant's statements by the police officer.
With respect to statements made to the police by the defendant after he was placed under arrest, the People demonstrated, beyond a reasonable doubt, that the defendant waived his Miranda rights and continued to speak with the police officers of his own accord and without undue pressure, and his statements were therefore voluntary and admissible. People v. Butler, 201A.D.2d 662 (2nd Dept.1994). The defendant has shown nothing to contradict that. The Court finds that defendant's statements were voluntarily given and therefore are not subject to suppression.
For the foregoing reasons, defendant's motions are denied.
This shall constitute the Decision and Order of the Court.
So ordered.