Opinion
11-14-2017
PEOPLE of the State of New York, Plaintiff, v. Erica E. ROSSI, Defendant.
Jessica A. Wagner, Esq., Assistant District Attorney. Christopher Schiano, Esq., Attorney for the Defendant.
Jessica A. Wagner, Esq., Assistant District Attorney.
Christopher Schiano, Esq., Attorney for the Defendant.
THOMAS J. DiSALVO, J.
History of the Case.
The defendant was charged with common law driving while intoxicated, VTL § 1192(3), consumption of alcohol in a motor vehicle, VTL 1227(1), and refusal to take the roadside breath test, VTL 1194(1)(b) on March 21, 2017. Subsequent to the arraignment of the defendant, defense counsel submitted omnibus motions with the court seeking, among other things, Huntley, Wade and probable cause hearings. Said hearings were granted and took place on October 27, 2017.
Facts of the Case.
The People called one witness at said hearings, to wit: the arresting officer, Alex Kirkpatrick of the Webster Police Department. Officer Kirkpatrick testified that on March 21, 2017 at approximately 8:10 P.M. he received a dispatch relative to a motor vehicle accident near the entrance to the Target store off of Ridge Road in the Town of Webster. Upon arriving at the scene he observed a white pick up truck on its side. Also at the scene was the fire department and a crowd observing the scene. When the officer approached the vehicle he was met by the fire chief, who handed him a purse containing a driver's license belonging to Erica E. Rossi. Attached to the purse was a bottle. No evidence was produced that indicated what was in the bottle or how it was attached to the purse. The fire chief reportedly told the officer that he was advised that the driver of the vehicle was helped out of the vehicle by a couple of people on the scene, and that the said items were left in the car. The chief was further told that the driver left the scene and went into the Target store. Officer Kirkpatrick then went into the store in search of the owner of said license. Once in the store the officer observed the individual depicted in the picture license. He then approached the individual and asked her if she was Erica Rossi? To which the individual acknowledged that she was. However, the defendant was on her cell phone at the time the officer first observed her. When the officer approached the defendant, she advised him that she was speaking to an attorney. The officer continued to try to speak to the defendant. However, the defendant ignored and walked away from the officer. In any event the officer testified that he noticed a laceration on the defendant's nose. The officer further testified that he observed the defendant to have glassy, blood shot, watery eyes. That she was hesitant and was swaying a little bit. The officer attempted to determine if the defendant wanted to speak to an emergency medical technician, but the defendant continued to ignore the officer. But she eventually did sit down and spoke to an E.M.T. while still in the store.
Officer Kirkpatrick testified that the defendant did agree to perform some field sobriety tests. The officer initiated the performance of same in the seating area of the Starbucks, which was inside the Target store. The first such test was the Horizontal Gaze Nystagmus test. However, the test was not performed because the defendant would not get in the starting position and kept raising her arms. The officer testified that the defendant told him that she could not drive her truck home, so she did not have to take the field sobriety tests. The defendant then refused to take the walk and turn test, the one leg stand test and finally the alco-sensor test.
Officer Kirkpatrick testified that during the discussion of the said field sobriety tests, the defendant admitted to driving. She further admitted to leaving the scene because she was embarrassed and ashamed. The officer indicated that the defendant told him that her vehicle tipped over when she struck a curb, and that she went into the store to get away from the incident. The defendant was then arrested for driving while intoxicated.
The Officer testified that he gave the defendant the commissioner's warnings at the scene. He gave the defendant the Miranda warnings subsequently at the police department. At that point the defendant refused to speak further to the officer. The officer had identified the individual in court as the individual he confronted in the store.
On cross-examination the defense confirmed that the defendant was on her cell phone when Officer Kirkpatrick initially confronted her. The officer admitted that the defendant told him she was on the cell phone with an attorney at that time. The officer stated that during that phone call another Webster Police officer entered the store as the defendant was walking away. The phone was then taken away from the defendant while she was still having a conversation with the said attorney. However, the officer could not remember if it was him or the other un-identified officer who took the cell phone from the defendant. Nevertheless, the officer testified on cross-examination that the defendant was unsteady on her feet "standing up or sitting down", but she did not fall down. He further testified that the defendant's speech was not slurred, mumbled or fast, nor did he have a problem understanding what was said by the defendant.
Issues Presented.
Should the statements of the defendant be suppressed?
Should any identification testimony of a third party to the police be suppressed?
Did the Officer have probable cause to arrest the defendant for a violation of VTL § 1192 ?
Legal Analysis.
Suppression of Statements.
A Huntley hearing was conducted to determine if the statements made by a defendant to the police were made voluntarily. ( People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965] ) The People have the burden of proving said voluntariness beyond a reasonable doubt. In this case incriminating statements were made by defendant to the arresting officer during the attempted administration of the field sobriety tests. However, before the court can reach the voluntariness issue posed by a Huntley hearing, it must deal with the fact that one of the Webster Police officers on the scene of the arrest took the defendant's cell phone from her while she was apparently speaking to an attorney. There is established case law relative to the limited right of a defendant, arrested for driving while intoxicated, to speak to an attorney before deciding whether to take a chemical test. (See People v. Smith, 18 N.Y.3d 544, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] and People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351 [1968] ).
"In People v. Gursey, 22 N.Y.2d 224, 227, 292 N.Y.S.2d 416, 239 N.E.2d 351 (1968), we held that if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police ‘may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand.’ If such a request is made, and it is feasible for the police to allow defendant to attempt to reach counsel without unduly delaying administration of the chemical test, a defendant should be afforded such an opportunity. As we explained in Gursey, the right to seek the advice of counsel—typically by telephone—could be accommodated in a matter of minutes and in most circumstances would not substantially interfere with the investigative procedure."
Smith at 549, 429, 965 N.E.2d 928.
The Court of Appeals went on to say "Where there has been a violation of the limited right to counsel recognized in Gursey, any resulting evidence may be suppressed at the subsequent criminal trial." In the instant case one is left wondering why the defendant was not allowed to finish her phone call. Even if it was necessary to secure the presence of the defendant in the store, the defendant should have been offered the opportunity to complete the phone call or redial the attorney once her presence was secured by the police. Thus based on the rulings in the Gursey and Smith cases, all evidence obtained by the police subsequent to the taking of the defendant's cell phone by the police including any statements made by the defendant and the defendant's performance of any field sobriety tests, including the breath test is hereby suppressed.
Smith at 550, 430, 965 N.E.2d 928.
Wade Hearing. The People did not present any evidence of an identification procedure executed by the police on March 21, 2017.
"On a motion to suppress eyewitness identification testimony, the defense bears the overall burden of proof to establish that a pretrial identification procedure was unduly suggestive (see People v. Sutton, 47 A.D.2d 455, 366 N.Y.S.2d 500 ; People v. Carter, 117 Misc.2d 4, 13, 457 N.Y.S.2d 695 ; see, also, People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 ), once, ..., the People have met their initial burden of going forward to establish the reasonableness of the police conduct and the lack of suggestiveness of the pretrial identification procedures." ( People v. Jackson, 108 A.D.2d 757, 757–758, 484 N.Y.S.2d 913, 915 (App.Div. 2nd Dept.) [1985] ).
In this case the People failed to meet their initial burden of going forward on the issue of the reasonableness of the police conduct and the lack of suggestiveness relative to any identification process. Thus, the defendant's motion to suppress the identification procedure is hereby granted.
Probable Cause. Defense counsel also moved to suppress any evidence stemming from the arrest of the defendant. A probable cause hearing was conducted to assist the court in deciding that issue. The testimony at said hearing has been set out above. The final question that the court must decide is whether said facts were sufficient to provide the officer with probable cause to arrest the defendant. The Court of Appeals has stated "In determining probable cause, the standard to be applied is that 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’ ( People v. Carrasquillo, 54 N.Y.2d 248, 254, 445 N.Y.S.2d 97, 429 N.E.2d 775 [1981] )." ( People v. Vandover, 20 N.Y.3d 235, 237, 958 N.Y.S.2d 83, 84, 981 N.E.2d 784 [2012] ). Initially the Hamptonburgh Justice Court, referring to the testimony of the arresting officer, held "... that defendant had glassy bloodshot eyes, breath that smelled of alcohol and a generally fatigued demeanor, found that this was insufficient to establish probable cause to arrest defendant and accordingly dismissed the charges." The Justice Court's findings where upheld by both the Appellate Term and the Court of appeals.
Id. at 238, 85, 981 N.E.2d 784.
Id. at 239, 85, 981 N.E.2d 784.
In a case similar to the instant case, involving a single car accident, the trial court found that the People established probable cause to arrest the defendant for a violation of Vehicle and Traffic Law § 1192. (See People v. Jace, 55 Misc.3d 1207[A], 2017 N.Y. Slip Op. 50450[U], 2017 WL 1331639 [2017] ). In that case only the arresting officer testified at the probable cause hearing. It was the arresting officer that investigated the accident scene and who initially confronted the defendant walking near the scene of the accident. He relied on the notes of another officer who administered the field sobriety tests in making the arrest. The arresting officer testified to "... the Defendant's admission that he had been driving and had consumed a quantity of alcohol, the Defendant's watery eyes and the odor of an alcoholic beverage on the Defendant's breath" The officer that administered the field sobriety tests, i.e. the horizontal gaze nystagmus test, the walk and turn test, the one leg stand test, indicated in her notes that the defendant failed each of those tests. Furthermore the defendant's breath tested positive for alcohol upon taking the preliminary breath test. The court stated that without the testimony of the officer who conducted the field sobriety tests it would have to decide the issue of probable cause based on the arresting officer's "observations alone". The court stated
2017 N.Y. Slip Op. 50450[U], *2.
Id. at *5.
Id. at *2.
Id. at *5.
"These observations consist of a significant accident scene, where the Defendant's vehicle mounted a sidewalk, damaged a utility pole support wire, struck a stationary vehicle sitting in the driveway of a private home, pushed that vehicle into a support beam of the residence which was damaged, continued onto the adjacent property, and landed in a flower bed, the Defendant's admission that he had been driving and had consumed a quantity of alcohol, the Defendant's watery eyes and the odor of an alcoholic beverage on the Defendant's breath. Relying on People v. Vandover, 20 N.Y.3d 235, 958 N.Y.S.2d 83, 981 N.E.2d 784 (2012) the Defendant argues that these observations are insufficient to support a finding of probable cause to arrest the Defendant. The Defendant's reliance on Vandover, id. , is misplaced."
Id.
The court in Jace, in finding that there was probable cause to arrest the defendant, held that
"While the Court of Appeals affirmed the Appellate Term's decision, finding "support in the record for the Appellate Term's determination that the facts did not support probable cause to arrest defendant[,]" People v. Vandover, 20 N.Y.3d 235, 237, 958 N.Y.S.2d 83, 84, 981 N.E.2d 784 (2012), the court further noted that the Appellate Term's "determination, based on a mixed question of law and fact, is beyond our further review." ( People v. Vandover, id. at 237, 958 N.Y.S.2d 83, 84, 981 N.E.2d 784 [2012] )"
Id.
The court was attempting to distinguish the holding in Vandover from its finding in Jace, based on the ability of the Court of Appeals to review the holding of the lower court. Nevertheless, it did not hold that the Court of Appeals disagreed with the standard applied by the lower courts in Vandover.
"There were three main principals to which the Jace court adhered in establishing probable cause. First "A person may be arrested for violating Vehicle and Traffic Law § 1192(1) if it is more probable than not that he or she exhibits ‘actual [ ] impair[ment], to any extent, [of] the physical and mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver’ (citation omitted). It is irrelevant that defendant was ultimately arrested and charged with common-law driving while intoxicated." Second that the "... the fact of an accident may be construed to circumstantially suggest diminished motor control or impaired driving judgement by reason of alcohol consumption, without regard to proof of fault...." Third "... in making the determination to arrest, an officer is not obligated to eliminate all possible innocent explanations for incriminating facts...."
Id. at *6.
Id.
Id.
In this case the court is left with the following facts to consider. The defendant was uncooperative with the officer. The defendant had a lacerated nose, presumably suffered as a result of the single car accident. Upon the initial encounter with the defendant the officer noticed that the defendant had glassy, blood shot, watery eyes and was hesitant and swaying. There was no testimony as to any odor of an alcoholic beverage emanating her breath. A bottle was recovered from the defendant's vehicle, but there was no testimony as to what was in said bottle. There was no testimony as to any admissions made by the defendant to the officer during their initial encounter. In addition, Officer Kirkpatrick testified that the defendant's speech was not slurred, mumbled or fast, nor did he have a problem understanding what was said by the defendant.
At what point does the "more probable than not standard" line up with the definition of reasonable cause as set out in CPL § 70.10(2) ? Certainly, the arrest of an individual for a violation of a VTL § 1192 subsection must be based on something more than a mere supposition. The evidence presented must be at least "legally sufficient" as defined by CPL § 70.10(1) that the defendant was driving while her ability was impaired by alcohol. This is not to discount the two principles set out in People v. Jace. In this case the defendant is reported to have been unsteady, hesitant and swaying with a head injury after a motor vehicle accident. The defendant's eyes were described as blood and watery. Based on the evidence presented, this court cannot conclude that it is more probable than not that the defendant's condition was based on alcohol consumption or that a single motor vehicle accident is of itself evidence of intoxicated driving. Nor is this court saying that the officer had a duty to eliminate every possible innocent explanation for the cited incriminating facts. However, probable cause for an arrest on a violation of Vehicle and Traffic Law § 1192, a/k/a reasonable cause, must be based on articulated facts leading to the logical conclusion of impairment, not guesswork on the part of the police. No issue was raised relative to the ability of the police to approach and make an inquiry of the defendant in the Target store. Nor would it have been improper to prohibit the defendant to remain in said store until the completion of her phone call, so the police could make the appropriate inquiries. However, the situation went downhill once the defendant's phone was taken from her. If the defendant in this matter was allowed to finish her phone call, she might have been more cooperative with the police. Finally, the Court finds as significant that there was no allegation of an odor of an alcoholic beverage emanating from the defendant's breath. In addition, the officer did not testify as to any problems with the defendant's speech. Thus the court finds that the People have failed to meet its burden show probable cause for the arrest of the defendant for a violation of any subsection of Vehicle and Traffic Law Section 1192 or for consumption of alcohol in a motor vehicle, VTL 1227(1).
"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. CPL § 70.10(2).
"Legally sufficient evidence" means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent. CPL § 70.10(1).
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Conclusion.
Defense counsel's motion for suppression of statements made after the taking of the defendant's phone is granted. For reasons stated above any evidence relative to the defendant's performance on any road side tests is also suppressed. Defense counsel's motion to suppress any third party identification of the defendant is granted. Finally, the motion to suppress the arrest of the defendant for lack of probable cause for said arrest is hereby granted. As a result, the charges of common law driving while intoxicated, VTL § 1192(3), consumption of alcohol in a motor vehicle, VTL 1227(1) and refusal to take the roadside breath test, VTL 1194(b), are hereby dismissed.