Opinion
Indictment 2017-861
06-11-2018
THE PEOPLE OF THE STATE OF NEW YORK v. JAMAL PIERRE, Defendant. Index No. 0083/2018
BRANDON OZMAN, ESQ.
Unpublished Opinion
HON. DAVID M. HOOVLER, ESQ. District Attorney of Orange County
BRANDON OZMAN, ESQ.
DECISION AFTER HEARING
HON. ROBERT H FREEHILL County Court Judge
Defendant is charged in this indictment with the crimes of Assault in the Second Degree, Resisting Arrest, Obstructing Governmental Administration in the Second Degree and Unlawful Possession of Marihuana. A hearing was held on May 29, 2018 in accordance with a Decision and Order dated March 23, 2018 to determine the admissibility of statements made by defendant and to determine the admissibility of physical evidence obtained from defendant.
New York State Police Investigator Anthony Eaton and Trooper Joseph Turoski testified credibly at the hearing.
Facts:
On August 9, 2017 Inv. Eaton was on patrol with Trooper Michael Johnson in an unmarked SUV on Route 52 in the Town of Newburgh. At approximately 5:50 p.m., Inv. Eaton observed a vehicle with Massachusetts plates fail to signal in violation of Vehicle and Traffic Law 1163b. The operator of the vehicle failed to signal until it had already commenced its turn into a gas station. Inv. Eaton activated the lights on the patrol vehicle and pulled behind the vehicle. Defendant, who was the operator of the vehicle, exited and walked to the rear of the vehicle. Inv. Eaton also exited his vehicle and approached defendant and asked for his license
and registration. When defendant brought his license to the rear of his vehicle, Inv. Eaton detected the strong odor of marihuana from within the vehicle.
Inv. Eaton told defendant why the vehicle was stopped and told him that he smelled marihuana. Defendant replied "yes, but it is contained." Inv, Eaton placed defendant's hands on top of the vehicle. Defendant pulled his hand away and began to struggle with Inv. Eaton, Trooper Johnson and Trooper Turosky. They fell to the ground and Trooper Johnson was injured. A search of the vehicle recovered 8 grams of marihuana in the center console. At the station, defendant stated that he was sorry for Trooper Johnson's injury.
Trooper Turoski was also on patrol when he responded to a call at 5:53 p.m. He came to the scene and observed two troopers speaking with defendant. He observed a struggle and he came to the struggle to restrain defendant's legs. Trooper Turoski performed a field test on the substance recovered from defendant's vehicle using a Narco Pouch 908 and he determined that the substance was marihuana. While defendant was awaiting booking, Trooper Turoski heard defendant state that he was sorry for Trooper Johnson's injury.
Discussion:
The stop of the motor vehicle operated by defendant was proper. The evidence at the hearing established that defendant was operating a motor vehicle when he failed to properly signal a turn (VTL 1162). Accordingly, the evidence presented at the hearing indicated that there was legitimate cause present to support a stop of the vehicle (see, People v. Ingle, 36 N.Y.2d 413 [1975]). The uncontroverted evidence established a clear violation of the Vehicle and Traffic Law that was directly observed by Inv. Eaton which justified the stop of the vehicle (see, People v. Robinson, 97 N.Y.2d 341 [2001]; People v. Taylor, 104 A.D.3d 961 [2nd Dept 2013]; People v. Graham, 54 A.D.3d 1056 [2nd Dept, 2008]).
The subsequent search of the vehicle based upon the odor of marihuana and the statement of defendant was proper. The odor of marihuana and the statement of defendant provided probable cause to believe that the automobile contained contraband and is sufficient to establish the existence of probable cause to support the warrantless search of the automobile [see, People v. Peterson, 22 A.D.3d 770 (2nd Dept 2005); People v. Turchio, 244 A.D.2d 366 (2nd Dept 1997); People v. Harrington 30 A.D.3d 1084 (3rd Dept 2006); People v. Pierre, 8 A.D.3d 904 (3rd Dept 2004)]. Accordingly, Inv. Eaton's detection of the odor of marihuana together with the statement of defendant affirming Inv. Eaton's statement that he smelled marihuana justified the search of the vehicle [People v. Semanek, 30 A.D.3d 547 (2nd Dept, 2006); People v. Parris 26 A.D.3d 393 (2nd Dept, 2006); People v. Peterson, 22 A.D.3d 770 (2nd Dept, 2005); People v. Cirigliano 15 A.D.3d 672 (2nd Dept, 2005); People v. Morgan 10 A.D.3d 369 [2nd Dept, 2004])].
The statements of defendant made at the side of the road were in response to a statement made by Inv. Eaton that explained the reason for the stop and advised defendant that he smelled the odor of marihuana. The defendant responded to this statement by stating "yes, but it's contained." The defendant was not responding to a question. Even if the statement made by Inv. Eaton was intended to elicit a response, it did not require him to advise the defendant of his constitutional rights (see, People v. Milo, 300 A.D.2d 680 [2nd Dept, 2002]; People v. King 222 A.D.2d 699 [2nd Dept, 1995]). At that point, the statement, if intended to obtain a response, was akin to an investigatory question. However, the Court finds that, on its face, the statement of Inv. Eaton was merely designed to advise the defendant of why he was stopped and what the officer smelled. The statement made by defendant in response was spontaneous. It is clear that nothing surrounding the conversation between defendant and Inv. Eaton indicated that the statement was obtained by any unlawful means.
Likewise, the statement of defendant that he was sorry for the injury to Trooper Johnson was voluntary. The spontaneous statement made by defendant was not in response to any statement or question. Based upon the credible testimony at the hearing, the statement made prior to booking must be considered spontaneous (see People v. Maerling, 46 N.Y.2d 289 [1978]).
The foregoing constitutes the Decision and Order of the Court.