Opinion
No. 2015KN018814.
09-25-2015
The PEOPLE of the State of New York v. Jason BICAL, Defendant.
Kenneth F. Thompson, District Attorney, Kings County, (ADA Melissa Pond), for the People. The Legal Aid Society (, Esq, for the Defendant).
Kenneth F. Thompson, District Attorney, Kings County, (ADA Melissa Pond), for the People.
The Legal Aid Society (, Esq, for the Defendant).
DENA E. DOUGLAS, J.
Defendant, Jason Bical, is charged with Operating a Motor Vehicle while under the Influence of alcohol or drugs pursuant to Vehicle and Traffic Law (VTL) §§ 1192.3 and 1192.1; Following Too Closely pursuant to VTL § 1129(a) ; and Exceeding the Posted Speed Limit pursuant to VTL § 1180(d). On June 18, 2015, a hearing was held before this Court. The Court denied the defendant's motion to suppress the People's evidence, ruling that the testifying Officers were credible. The Court found there was insufficient reason to exclude evidence regarding the stopping of defendant's vehicle, the arresting of defendant, the statements made by defendant or evidence regarding defendant's persistent refusal to submit to a chemical test.
Defendant now seeks to have the court reconsider its decision. On June 23, 2015, before the court, defendant requested permission to provide a written motion, with pertinent case law to support reargument, prior to the start of trial. Defendant's motion to reconsider was filed on July 6, 2015. The People chose not to file a written response to defendant's motion. After extensive review, the Court finds itself in the position of again denying defendant's motion to suppress the requested evidence. We now direct the parties to trial.
DISCUSSION
A. Purpose of Hearings
The primary function of a preliminary hearing is generally understood to be to permit a judicial determination that a crime has been committed and that there is probable cause to believe that the accused committed it, thereby justifying any restraint on his liberty prior to trial.
Whitebread, Charles H., Criminal Procedure: An analysis of constitutional cases and concepts. Mineola, NY, The Foundation Press, Inc, 1980, p. 331–341.
However, the purpose of a suppression hearing is somewhat different-the court's focus is on whether or not evidence that might be presented should be suppressed due to improper procedure on the part of the governmental agent whose actions created a defendant in the eyes of the law. Such a hearing often takes place when a defendant is not in custody and is thus not primarily focused on whether the defendant may be detained, or on the setting of bail, but on whether sufficient evidence exists to justify the approach to defendant by law enforcement officials, to justify the subsequent arrest and detention of said defendant, and/or to evaluate the treatment of defendant while in the custody of law enforcement officials, for example, the reading to defendant of his/her Miranda rights, or the clarity defendant's response to offers of a chemical breath test.
Suppression issues often result from violations of the Fourth, Fifth and Sixth Amendments to the United States Constitution. The exclusionary rule, derived from the Fourteenth Amendment, bars admission of evidence obtained by governmental action in violation of a defendant's State or Federal constitutional rights.
B. Reconsideration
Reconsideration of a hearing decision is akin to reargument of the court's decision on any motion. A motion for reargument is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principles of law." (Gihon, LLC v. 501 Second St., 17 Misc.3d 1136[A] [Sup Ct, Kings County, 2007] )
As defendant's motion is timely (CPLR § 2221[d][3] ) and the court retains jurisdiction (CPLR § 2221[a] ), we granted defendant's motion asking the court to reconsider. Defendant requested permission to provide a written motion, with pertinent case law to support reargument (Transcript, June 23, 2015, page 13, lines 17–22). Defendant's motion, however, consisted of a precis of his closing arguments and did not contain references to case law that would support his positions. Defendant did not offer any new arguments; nor did he submit any new evidence that would justify reopening or re-examination.
The Court of Appeals has held that the People, if afforded a full and fair opportunity to present evidence of the dispositive issues at a suppression hearing, are not entitled to a reopening of a suppression hearing for an opportunity to shore up their evidentiary or legal position absent a showing that they were deprived of a full and fair opportunity to be heard. People v. Havelka (45 N.Y.2d 636 [1978] ; People v. Kevin W. (22 NY3d 287 [2013] ). Absent extraordinary considerations, the People do not get second bites of the apple and must bear the responsibility of properly presenting their case at the hearing People v. Brown, 24 Misc.3d 892, 894 (N.Y.Sup.Ct.2009). In fairness, we hold that these constrictions must apply equally to the defendant.
Nevertheless, we conducted a careful examination of the hearing in response to defendant's implied allegation that the court had overlooked or misapprehended the relevant facts or misapplied a controlling principle of law.
A combined Dunaway–Huntley–Ingle and Refusal hearing took place on June 18, 2015, and the court rendered its decision on June 23, 2015. The issues under consideration included: reasonable cause for a traffic stop (Ingle ), probable cause to arrest (Dunaway ), voluntariness of noticed statements made by defendant (Huntley ), and Refusal -whether defendant persistently refused to submit to a chemical breath test after clear opportunities were offered. As defendant's motion to reconsider did not discuss matters relating to Dunaway, Huntley or Refusal issues, we focus our discussion on the issues related to Ingle, as did defendant.
Defendant takes the position that if it was not proven in the hearing that defendant had been speeding or that defendant's weaving was outside of his lane or that defendant's closeness to the car in front was reasonable and prudent under the circumstances, the evidence regarding such charges should be suppressed. A suppression hearing is not a mini-trial; witness testimony need not prove that defendant was guilty of law-breaking, but only indicate that sufficient evidence may exist to prove such at trial, that the officers had sufficient cause to stop defendant's vehicle and that no procedural errors were committed in their interaction with defendant.
Although weaving within a lane may or may not be shown to be against the law, it may still be an indication of a driver's lack of control of his/her vehicle and be adequate reason to stop a vehicle. Regarding following too closely, it is not the duty of an officer to articulate a specific driving distance that constitutes a violation of the traffic law of the State of New York. If the distance appeared to be unreasonable and imprudent under the existing highway conditions, that appearance is sufficient reason to stop the vehicle. The testimony of both officers was that the defendant's car was within one car-length of the car in front of him. Such a separation has been held to be unacceptable and violative of Vehicle and Traffic Law (VTL) § 1129(a). Rocco v. Goldman, 23 Misc.2d 995 (Sup Ct, Nassau Co, 1960) ; Matter of Florio v. N.Y. State Dept of Motor Vehicles, 106 AD3d 905 (App.Div., 2nd Dept, 2013).
Taken together, a combined appearance of speeding, weaving, and following too closely cannot be to be held to be insufficient for officers to stop defendant's vehicle in order to make what constituted a Level One inquiry.
People v. DeBour, 40 N.Y.2d 210, 213 (1976) ; Santiago v. City of NY, 2002 N.Y. Slip Op 40036(U) (Sup.Ct., Bronx Co., 2002) (Even if no traffic infraction is ultimately established, there might have existed a sufficient factual predicate for a DeBour stop.)
Nothing in defendant's motion for reconsideration provides the court with reason to amend its existing decision.
CONCLUSION
Defendant's motion to suppress evidence is denied.
The foregoing is the decision and order of this court.