Opinion
2007/07932.
Decided December 1, 2008.
Kristin Pohmer, A.D.A. of counsel to Kathleen M. Rice, District Attorney, Attorney for the Plaintiff, Nassau County District Court, Hempstead, New York. Anthony J. Colleluori, Esq. Attorney for the Defendant, Woodbury, New York.
DECISION AFTER HEARING
On March 15, 2007, defendant, Hector Ugarriza, was charged with violating one count of Section 1192.4 of the New York State Vehicle and Traffic law (Driving While Impaired by drugs), a misdemeanor, and one count of Section 220.03 of the New York State Penal law (Criminal Possession of a Controlled Substance), also a misdemeanor .
A pre-trial hearing was ordered to determine defendant's motion to suppress. On October 3, 2008 a Huntley/Dunaway/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant.
The People produced New York State Trooper Anthony Tatta, the arresting officer, as a witness to testify. The defendant did not call any witnesses. Based upon the credible evidence advanced at the hearing, the Court concludes the following:
FINDINGS OF FACT
On March 15, 2007 Trooper Tatta was working the 7A.M. X 7P.M. tour of duty. He was in a marked police vehicle, patrolling the Wantagh State Parkway, in uniform and working alone. At approximately 12:45 P.M. Trooper Tatta received a radio dispatch call of a motor vehicle being operated in an erratic manner and that the driver was possibly intoxicated. The dispatcher further advised Trooper Tatta that the vehicle was on the Wantagh State Parkway near exit W3 and that the license plate of the vehicle was DWW2377. Trooper Tatta was further advised that there had been at least twelve calls concerning this vehicle.
Trooper Tatta proceeded northbound on the Wantagh State Parkway in an attempt to locate the vehicle. After being unable to locate the vehicle on the Wantagh State Parkway, Trooper Tatta, proceeded westbound on the Northern State Parkway where he observed the vehicle identified by the license plate on the shoulder of the Northen State Parkway westbound, east of the Meadowbrook State Parkway. Trooper Tatta turned on his emergency overhead lights and pulled up to the vehicle.
Trooper Tatta approached the driver of the vehicle and requested his drivers license and registration, both of which were produced. It was at this time that Trooper Tatta observed defendant to be acting erratic and fidgety. Defendant also was observed to have glassy, bloodshot eyes, and was visibly sweating. Trooper Tatta described defendants erratic behavior as turning around, looking around the vehicle, touching things in the vehicle and the dashboard.
Within a few minutes of the investigation and in response to questions such as where defendant was coming from and going to, defendant responded in sum and substance that he just wanted to go and asked Trooper Tatta what parkway he was on. Defendant further stated in sum and substance that he was coming from his home in Brightwaters and that he was going to work in Queens. Trooper Tatta testified that there had been no threats, no promises of leniency, no physical force used, and that defendant was not in handcuffs or under arrest during the questioning.
Based upon the observations Trooper Tatta determined he would perform Standardized Field Sobriety tests. The first test administered was the Horizontal Gaze Nystagmus, the "HGN." Trooper Tatta testified that he gave instructions to defendant and that defendant indicated that the instructions were understood. After administering the "HGN" Trooper Tatta determined that defendant had failed the test. Trooper Tatta next gave instructions for and administered the one legged stand test. Trooper Tatta testified that defendant could not do the test as instructed and was unable to perform the test as he was flailing his arms and acting in an erratic manner. Trooper Tatta testified that he attempted to instruct and administer the one legged stand test two times without success. Trooper Tatta then instructed and attempted to administer the walk and turn test on defendant. The defendant was unable to perform this test and again was flailing his arms and acting erratically. Finally, Trooper Tatta instructed and attempted to administer the Romberg balance test without success. Trooper Tatta testified that defendant was unable to keep his head back and eyes closed due to rapid eye movement in the form of opening and closing of the eyes.
Based upon his observations, Trooper Tatta placed defendant under arrest for Driving while under the influence of drugs. At approximately 1:45 P.M. Trooper Tatta read defendant his Miranda warnings.
After reading the Miranda warnings, Trooper Tatta asked defendant if he had taken any drugs that day. Defendant responded in sum and substance that he wasn't concerned about what he took today, but he was concerned about what he was taking three days ago.
After defendant was placed under arrest, Trooper Tatta conducted a search of the defendant and recovered one and one half vicodin pills from his left front breast pocket.
During the course of the hearing it was determined that the 911 tapes of the calls concerning defendant had been destroyed by the State Police. It is not in dispute that defendant made a timely request to the District Attorneys office for the tapes, nor is it in dispute that the District Attorneys office made a timely request to the State Police for the preservation and production of the tapes. For reasons known only to the State Police, the tapes were destroyed. The parties were given until October 24, 2008 to provide the Court with briefs concerning the appropriate sanctions, if any, that the Court could impose concerning the destruction of the 911 tapes. October 24, 2008 came and went without submissions by either party.
CONCLUSIONS OF LAW The Mapp/Dunaway Hearing:
Notwithstanding the good faith of the parties, the State Police conduct of destroying the 911 tapes despite being put on timely notice to preserve and produce them, can not go without sanctions. As such, the Court will limit testimony concerning the contents of the 911 tapes. At trial, Trooper Tatta will be allowed to testify that he received a dispatchers call concerning a motor vehicle bearing license plate DWW2377. No testimony concerning the alleged erratic driving, that the operator of the vehicle was possibly intoxicated, or that there were approximately twelve calls made shall be permitted.
Notwithstanding these limiting sanctions, the Court finds that Trooper Tatta lawfully approached defendant after receiving a dispatchers radio call of a motor vehicle, identified by its license plate on the shoulder of the Northen State Parkway. Even without receiving a dispatcher call, Trooper Tatta would have been well within his duties as a New York State trooper to investigate a vehicle on the shoulder of a State Parkway. This minimal intrusion by Trooper Tatta, acting in the course of his normal routine duties did not unnecessarily interfere with defendant's individual privacy and freedom of movement and was therefore reasonable under the circumstances. People v. Smith, ( 252 AD2d 352, 675 NYS2d 70; People v. Mathis, 167 AD2d 221, 222, denied 77 NY2d 963, 570 NYS2d 497, 573 N.E.2d 585.)
After lawfully approaching the vehicle, Trooper Tatta, observed the defendant to have glassy, bloodshot eyes, and that he was visibly sweating. Trooper Tatta also described defendants behavior as erratic. Based upon these observations Trooper Tatta conducted Field Sobriety Tests, at the conclusion of which, defendant was placed under arrest.
The Court finds that Trooper Tatta had reasonable suspicion to approach defendants vehicle and that after approaching the vehicle, probable cause was established to make a warantless arrest of defendant.
The Huntley Hearing:
At the conclusion of testimony, it is clear that the statements made by defendant prior to the Miranda warnings were spontaneously made in response to legitimate preliminary and pre-custodial inquiries which were investigatory in nature. However, after reading the Miranda warnings, Trooper Tatta asked defendant if he had taken any drugs that day, which the defendant responded in sum and substance that he wasn't concerned about what he took today, but he was concerned about what he was taking three days ago. That post Miranda warning question and response shall be suppressed at time of trial.
So Ordered: