Opinion
2007/007424.
Decided on April 16, 2008.
Kathleen M. Rice, District Attorney.
Gregory Grizopoulos, Esq.
On March 25, 2007, Defendant, Lance M. Ruggeri, was charged with violating one count of Section 1192 Sub. 2 of the New York State Vehicle and Traffic law, driving while intoxicated, a misdemeanor; and one count of Section 375 Sub. 35[c] of theNew York State Vehicle and Traffic law, operating a motor vehicle on unsafe tires, a violation.
A pre-trial hearing was ordered to determine defendant's motion to suppress. On February 21, 2008, a Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant.
The only witness at the hearing was Police Officer John Florio, a member of the Garden City Police Department, who testified for the People. Officer Florio testified that he has been a police officer in excess of twenty years and received training in regard to intoxicated and impaired individuals through the Nassau County Police Department as well as in service training. Officer Florio also testified that he has been involved in several hundred drinking and driving arrests (Hearing Transcript pg. 4). Based upon the credible evidence advanced at the hearing, the Court concludes the following:
On March 25, 2007, Officer Florio was working the 7pm to 7am tour of duty. He was assigned to patrol in a marked police vehicle and was working solo. At approximately 4:45 am, Officer Florio, traveling southbound on Arthur Street, observed a slow moving vehicle traveling northbound on Arthur street with a loud, grinding sound and sparks coming from the front end of the vehicle. Officer Florio observed the vehicle pull over to the side of the road in front of 101 Arthur Street. Officer Florio, crossing over to the northbound side of the street, pulled up to the vehicle with the front of his vehicle facing the front of the defendant's vehicle. Officer Florio did not put his overhead emergency lights on.
Officer Florio observed the defendant exit the vehicle and walk toward the rear of the vehicle from the driver's side, walk around the rear of the vehicle, then, from the passenger side of the vehicle walk toward the front. Officer Florio exited his marked police vehicle and approached the defendant/driver and requested identification. The defendant produced a valid North Carolina drivers license identifying him as Lance M. Ruggeri. When Officer Florio first approached the defendant, he had one hand on the fender of the vehicle and he was looking in a downward direction. Officer Florio observed that two front tires were missing from defendant's vehicle, causing the vehicle to be operated on two rims. Officer Florio asked defendant where he was coming from, at which defendant responded he had come from Mulcahy's. Officer Florio then asked defendant if he had been drinking. Defendant responded that "he had had many drinks at Mulcahy's". When Officer Florio inquired of the defendant where he was, defendant believed he was in Fresh Meadows, not Garden City.
Officer Florio, after being joined by another Garden City Police Officer, administered three field sobriety tests (FST). The tests were administered in the area between the front of defendant's vehicle and the front of the marked police vehicle. The administered tests were the Horizontal Gaze Nystagmus, the walk and turn test and the one leg stand. Officer Florio could not provide any testimony as to the standardized clues required of the three standardized field sobriety tests. At the conclusion of the Field Sobriety Tests, based upon his experiences, both personal and professional of dealing with intoxicated individuals, Officer Florio placed the defendant under arrest for driving while intoxicated.
The Huntley Hearing:
At the conclusion of testimony, defendant's counsel did not challenge the voluntariness of the statements made by defendant ( see Hearing Transcript pg. 72, lines 10-13).It is clear the statements were made in response to legitimate preliminary and pre-custodial inquiries which were investigatory in nature ( see People v. Hanna, 185 AD2d 482; People v. Brown, 33 AD2d 735). Thus, statements at issue contained in the 710.30 notice will be admissible at trial.
The Mapp/Dunaway Hearing:
The Court finds that Officer Florio lawfully approached defendant after observing defendant operating his vehicle in a slow manner, with sparks coming from the front end of the vehicle, and then pulling over to the side of the road. "The minimal intrusion of [a police officer] approaching to request information is permissible when there is some objective credible reason for the interference not necessarily indicative of criminality ( People v. De Bour, supra). The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure (citation omitted)" ( People v. De Bour, 40 NY2d 210, 223). It is clear that Police Officer Florio acted reasonably in approaching a motorist that not only appeared to be in distress with the operation of his motor vehicle, but was in violation of Vehicle and Traffic Law Section 375 Sub. 35[c], operating a motor vehicle on unsafe tires.
In People v. Farrell, 89 AD2d 987 the Appellate Division, Second Department articulated the reasonable cause (probable cause) as it applies to drinking and driving offenses, which is stated as :
[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 ( Id at 988).
Further, the court in Dykeman v. Jackson, 262 AD2d 877 found probable cause for the arrest of petitioner on driving while intoxicated charges where the arresting officer observed the petitioner/driver to be "dazed and confused, smelled of alcohol, admitted drinking and had failed various field sobriety tests" ( Id at 877). In the case at bar, the defendant like the petitioner/driver in the Dykeman case was dazed and confused as he believed he was in Fresh Meadows, Queens rather than in Garden City and admitted that he "had had many drinks at Mulcahy's." It should be noted that the absence of an odor of alcohol does not minimize the arresting officer's other observations of intoxication and does not preclude a determination of probable cause for defendant's arrest on driving while intoxicated ( People v. Farrell, 89 AD2d 987, supra).
The Court further finds that officer Florio had sufficient probable cause to arrest defendant for violating Vehicle and Traffic Law § 1192 prior to his performance of the field sobriety tests, based solely on his observations of defendant's operation of his motor vehicle without two front tires, his admission that he "had had many drinks at Mulcahy's", and the fact that defendant believed that he was in Fresh Meadows, Queens, rather than in Garden City. ( People v. Ball, 141 AD2d 743; People v. Blajeski, 125 AD2d 582).
Defendant's request to be permitted the opportunity to re-open testimony for the limited purpose of the introduction of an expert witness concerning the recognized standards used in FST is not warranted at this time.
This constitutes the decision and order of the Court.