Opinion
No. 13–221926.
02-06-2015
PEOPLE of the State of New York v. Jason WALLACE, Defendant.
P. David Soares, Esq., Albany County District Attorney, Albany, Megan Spillane, Esq., Assistant District Attorney, Annelli, Xavier, Attorneys for Defendant. Martin P. Bonventre, Esq., Albany.
P. David Soares, Esq., Albany County District Attorney, Albany, Megan Spillane, Esq., Assistant District Attorney, Annelli, Xavier, Attorneys for Defendant.
Martin P. Bonventre, Esq., Albany.
Opinion
RACHEL L. KRETSER, J.
The defendant, Jason Wallace, is charged with driving while ability impaired, an unclassified misdemeanor, in violation of Vehicle and Traffic Law § 1992(1) and driving while intoxicated, an unclassified misdemeanor, in violation of Vehicle and Traffic Law § 1192(3). Pursuant to a decision of the court, a Huntley/Dunaway/Mapp hearing was held on June 12, 2014. The matter now comes before the Court for a decision.
The people called two witnesses at the hearing, Officers Daniel J. Kuhn and Altin Miftari. Based upon their testimony, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
Officer Daniel Kuhn worked the midnight to 8:00 a.m. shift on August 18, 2013. He was in uniform and on a routine patrol with a trainee in a marked patrol vehicle. Their patrol led them to the area of Clinton Avenue where, at approximately 4:03 a.m., they observed a Chevy Tahoe SUV and a male riding a bicycle. The bicyclist was heading east and was observed weaving in and out of traffic. The driver of the Tahoe diverged from his lane for a time to avoid hitting the bicyclist when their paths crossed. Although a collision was avoided through this evasive action, the bicyclist once again swerved into the path of the Tahoe. This time the bicyclist struck the Tahoe in the side. The impact caused the bicyclist to fall to the pavement. The Tahoe pulled over approximately one hundred feet down the road. Officer Kuhn notified dispatch that he had just witnessed an accident involving a motor vehicle and a bicycle.
Officer Kuhn proceeded to pull up behind the Tahoe. At that time, the driver and passenger of the Tahoe exited the vehicle. The driver had no trouble exiting the vehicle and had no problems standing or walking. Upon initial questioning, the driver produced identification and stated that his name was Jason Wallace, the defendant in the instant action. Officer Kuhn observed that the defendant had bloodshot eyes and he detected an odor of alcohol emanating from the defendant's breath. However, the defendant's answers to Officer Kuhn's questions were coherent and responsive, and the defendant's speech was not slurred.
Officer Altin Miftari was in a patrol car when he heard Officer Kuhn's radio transmissions indicating that he had witnessed a personal injury accident. Officer Miftari testified that he drove to the location of the accident and observed the bicyclist lying in the middle of the street, bleeding from his head. After discussing the incident with Officer Kuhn, Officer Miftari approached the defendant and began questioning him about what occurred. The defendant essentially repeated what he had previously told Officer Kuhn. Officer Miftari had no problem understanding the defendant's answers which were responsive and coherent. Officer Miftari also detected an odor of alcohol and observed that the defendant had glassy eyes. Based upon these observations, Officer Miftari asked the defendant to perform field sobriety tests.
By this time, several officers had converged upon the scene. EMTs were on their way. Clinton Avenue was blocked off at Lexington Avenue on the east and Robin Street on the west, so that neither vehicles nor pedestrians could pass. Officer Miftari asked the defendant if he suffered from any disabilities, had any issues with his eyes, had any physical injuries or had surgery in the past month or so. The defendant answered that he was concerned about his ability to perform the tests because he was overweight and had a knee injury. Officer Miftari did not address the defendant's knee injury and told the defendant that his weight would not prevent him from performing the tests.
Officer Miftari administered the horizontal gaze nystagmus test and testified that he observed six out of six clues on this test indicating failure. Officer Miftari also performed the vertical gaze nystagmus test and stated that he detected nystagmus on this test as well. Next, Officer Miftari administered the walk-and-turn test. Throughout this process the defendant reiterated that he was concerned about his ability to perform the tests due to his weight and his knee. Prior to beginning the walk-and-turn test, the defendant stated that he would be fine “as long as my knee doesn't give out.” While the bill of particulars states that there were more than two clues, Officer Miftari admitted that, in fact, he had observed only two out of eight clues for this test indicating that defendant had passed the test. Finally, Officer Miftari administered the one-leg-stand test. The defendant exhibited two out of four clues on this test, which indicates a failure.
During the third test, a vehicle drove through the police tape and onto the scene of the accident. This unexpected intrusion diverted the attention of the officers away from the defendant “for a brief period to make sure that [the other driver] didn't hit any[one] on the scene.” Despite this distraction, Officer Miftari did not subsequently restart or resume the test. He instead proceeded to administer an Alco–Sensor breath screening test, which was positive for alcohol. Officer Miftari's opinion, based on six years as a police officer, substantial training and experience, and more than one hundred arrests, “was that [defendant] was definitely impaired by alcohol, borderline intoxicated.” At this time, Officer Miftari placed the defendant under arrest.
CONCLUSIONS OF LAW
With respect to the Huntley portion of the hearing, the prosecution has the burden of proof to establish the voluntariness of a statement beyond a reasonable doubt (People v. Huntley, 15 N.Y.2d 72, 78 [1965] ). The voluntariness of an inculpatory statement should be evaluated based on the “totality of the circumstances” under which it came about (People v. Anderson, 42 N.Y.2d 35, 38 [1977] ). In order to determine the issue of suppression, the element of custody must first be established. The test is whether a reasonable person, innocent of any crime, would have thought that she was in custody had she been in the defendant's position (People v. Yukl, 25 N.Y.2d 585, 589 [1969] ; People v. Norton, 135 A.D.2d 984, 986 [3d Dept 1987] ). It is well established that the elements of custody and interrogation must both be present before Miranda warnings are constitutionally required (People v. Huffman, 41 N.Y.2d 29, 32 [1976] ).
The People have met their burden with respect to the Huntley portion of the hearing. Officers Kuhn and Miftari responded to the scene of an accident and questioned the defendant under such circumstances that a reasonable person in the defendant's position would not believe that he was in custody. The Court finds that, under the totality of the circumstances, the defendant's statements made prior to arrest were voluntary. The defendant's motion to suppress statements is hereby denied.
The next issue is whether there was probable cause to arrest the defendant without a warrant. It is well settled that “[w]hen a defendant is charged with driving while intoxicated, probable cause for the arrest exists if the arresting officer can demonstrate reasonable grounds to believe that the defendant had been driving in violation of Vehicle and Traffic Law § 1192 ” (People v. Kowalowski, 738 N.Y.S.2d 427, 429 [2d Dept 2002], citing People v. Poje, 706 N.Y.S.2d 733, 735 [3d Dept 2000], lv. denied 95 N.Y.S.2d 837 [2000] ). New York Criminal Procedure Law provides that a police officer may effectuate an arrest for a crime without a warrant if she has reasonable cause to believe that a person has committed such crime (CPL 140.10[1][b] ). Courts have held that in this context “[r]easonable cause means probable cause” (People v. Maldonado, 86 N.Y.2d 631,635 [1995], citing People v. Johnson, 66 N.Y.2d 398, 402 n 2 [1985] ).
As an initial matter, the Court notes that there were several issues with the standardized field sobriety tests. The administration of the HGN was flawed and the results were therefore compromised. Interestingly, Officer Miftari stated that he has “[n]ever done the test on someone that's sober,” explaining that he therefore “wouldn't know” whether a person who is not intoxicated might have nystagmus at maximum deviation. Moreover, Officer Miftari testified under cross examination that he had not looked at his training manual in at least two years, and could not recall certain key points regarding the proper administration of the tests. The video confirms that the HGN test was improperly performed for a variety of reasons including, inter alia, failure to hold the stimulus at maximum deviation for anywhere near the minimum of four seconds. Thus, at least four of the clues allegedly observed must be disregarded.
Aside from the compromised HGN test, the VGN test is also suspect. The officer claims to have detected nystagmus when performing the VGN test, which is indicative of a relatively high level of intoxication for the test subject. Yet, the defendant's BAC proved to be only 0.05%. This BAC is inconsistent with Officer Miftari's test results and observations as is the defendant's overall performance on the standardized field sobriety tests. Furthermore, with respect to the walk-and-turn test, it is unclear why the number of clues noted on the DWI notes is inconsistent with the number of clues noted on the supporting deposition. In any event, the video reflects, at most, one clue. In addition, Officer Miftari merely instructed the defendant to walk straight, one foot in front of the other, heel to toe, but did not instruct the defendant that he was to walk along any particular line, either real or imaginary. Thus, a slight deviation from an imaginary line—a line known only to the officer—is a questionable clue, especially when it is not evident from the video that the defendant stepped off the line at all.
Another troubling issue is the discrepancy in the testimony with regard to the accident. Officer Kuhn observed the bicyclist strike the defendant's vehicle and communicated this to Officer Miftari when he arrived. However, once the matter became a DWI investigation, Officer Miftari wrote in his notes that the defendant struck the bicyclist, which is the opposite of what was testified to. Not only was the defendant driving properly, but his swift evasive action the first time the bicyclist nearly collided with him is indicative of sharp reaction time and is evidence that the defendant was in full possession of his wits and mental faculties. It is wholly inconsistent with impaired ability or intoxication.
Considering the totality of the circumstances, the Court finds that there was no probable cause to administer field sobriety tests. The Court notes that, even if the field sobriety tests are considered, the defendant's performance on the tests did not provide sufficient probable cause for the arrest. Accordingly, all evidence following the arrest of the defendant, including the results of the chemical test, is hereby suppressed.All motions not granted herein are hereby denied. This opinion shall constitute the Decision and Order of the Court. The matter is adjourned to, 2015 at.m. for a pre-trial conference.
SO ORDERED.