Opinion
No. 2103-0009
07-20-2022
The People of the State of New York, Plaintiff, v. Matthew P. Conrad, Defendant.
Sandra Doorley, District Attorney, Monroe County (Ryan R. Mulcahy of Counsel), for plaintiff. Christopher Schiano, Rochester, for defendant.
Unpublished Opinion
Sandra Doorley, District Attorney, Monroe County (Ryan R. Mulcahy of Counsel), for plaintiff.
Christopher Schiano, Rochester, for defendant.
Thomas J. DiSalvo, J.
History of the Case
The defendant was charged on February 23, 2021 with refusal to take a breath test, VTL § 1194 (1)(b), failure to comply with a lawful order of a police officer, VTL § 1102, driving while impaired by drugs, VTL § 1192 (4), unlicensed operator, VTL § 509 (1), unsafe lane change, VTL § 1128 (c), unsafe lane change, VTL § 1128 (a), aggravated unlicensed operation, 3rd degree, VTL § 511 (1) (a) and criminal possession of controlled substance, 7th degree, VTL § 220.03. The uniform traffic informations indicate that he was driving a black 2021 GMC. He was arraigned on May 19, 2021. At which time the court suspended his driver license as result of a Report of Refusal to Submit to Chemical Test. At a subsequent disposition appearance on July 7, 2021 defense counsel requested supporting deposition for the various vehicle and traffic law offenses. Omnibus motions were submitted by defense counsel, requesting, among other things, probable cause and Huntley hearings and dismissal of any vehicle and traffic charges for which requested supporting depositions were not provided. Said hearings took place on two separate dates. The hearings began on October 29, 2021. The balance of the hearings took place on April 1, 2022, after an adjournment for counsel to resolve some discovery issues.
Facts of the Case.
Trooper Alexsandr Delcorvo, testified on behalf of the People. He testified that on February 23, 2021 at approximately 9:39 A.M. he was on routine patrol in the City of Rochester. At which time he received a dispatch regarding a vehicle that hit the barrier with the air bags deployed in the area of State Route 104 at Maplewood Avenue in the City of Rochester, but which had left the scene of the accident. When he arrived at the scene he did not see said vehicle. The trooper then went about his normal duties. About a half hour later, while he was assisting a disabled vehicle on Route 104 eastbound, he was approached by a concerned citizen, who told him that a vehicle had just passed him driving eastbound with air bags deployed and driving on one rim. Trooper Delcorvo proceeded to look for said vehicle. Eventually he observed a vehicle with air bags deployed driving on one rim in the area of State Routes 104 and 590. That location being in the Town of Irondquoit. At that time he activated his emergency lights and attempted to initiate a traffic stop of the vehicle. The defendant initially failed to comply with that demand to pull over. The trooper then notified dispatch that he was initiating a pursuit of that motor vehicle. During the time of that pursuit the trooper indicated that he observed various violations of the Vehicle and Traffic Law. He also observed vehicle parts actually flying off the vehicle. The vehicle was followed over the Irondequoit Bay Bridge into the Town of Webster, where it came to a stop just past the bay bridge. Upon exiting his patrol car he approached the stopped vehicle and detained the driver without incident. He was able to identify the driver through his New York State Driver License. The defendant was then identified in court as the driver of the stopped motor vehicle.
Upon approaching the vehicle the trooper allegedly engaged in a conversation with the defendant. He testified that he asked the driver if he was involved in an accident. To which the defendant reportedly answered "yeah". The trooper stated that the defendant told him a vehicle cut him off and that's why he hit the barrier and he had to leave the accident because he had to go to an ATM on Hudson Avenue in the City of Rochester. He further testified that he asked the driver where he was coming from and where he was going. To which the defendant stated "To a Norris, a Rehab Facility." Trooper Decorvo indicated that during said conversation he observed the defendant to have blood shot, glassy eyes, slurred speech and a slow movement of the eyes. He further observed the defendant nodding off while talking to him. The trooper stated that he observed a "blue substance" around his mouth. The defendant denied having been drinking, but admitted having taking Xanax and another medication for which he had a prescription, that he had taken the night before. However, on cross-examination, the trooper testified that he did not engage in any conversation with the defendant when he first approached him. So although the conversation between the trooper and the defendant no doubt occurred, it is unclear when than conversation actually took place. The trooper testified on direct examination as to speaking with the defendant, but there was no time frame of the conversation presented by the People. However, on cross-examination the trooper specifically denied having any conversation with the defendant at the time he initially approached the defendant's vehicle.
On page 22 of the transcript of the hearing on October 29, 2021 the questions and answers on cross-examination were as follows:
"Q. So, you just approached the vehicle that's parked on the side of the road?
A. Yes, I did.
Q. Did you ask him to exit the motor vehicle and you handcuffed him immediately?
A. Yes, I did.
Q. Did you search him as well?
A. Not at that time. I did a pat down, not a search.
Q. All right. So you walked up to his window and the first thing your do is say, please exit the motor vehicle?
A. I asked him to get out of the vehicle, yes.
Q. All right. So you don't ask him for his license or registration. You don't ask him for any preliminary questions, just exit the motor vehicle right off the bat, correct?
A. Correct.
Q. You place him in your car at that point in time or what do you do?
A. No. He was outside of the vehicle and we called EMS to have him checked over.
Q. Did EMS arrive?
A. They did, yes."
The question and answer from direct examination of the trooper on page 9 of the transcript of the hearing on October 29, 2021 is as follow:
"Q. Did there come a time when you had a conversation with this defendant?
A. Yes."
Trooper Decorvo testified that he requested that the defendant perform some standardized field sobriety tests to determine if he was capable of driving. The defendant complied and did perform the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test. None of which the defendant was able to satisfactorily perform. The alphabet and counting tests were also administered. Neither of which the defendant was able to correctly perform. Making the determination that the defendant was impaired the trooper arrested the defendant for driving while impaired. However, the direct examination does not address the fact that Emergency Medical Service [EMS] was called upon the defendant exiting his vehicle. In addition, on cross-examination it appears that the roadside field sobriety tests were performed after the defendant was un-handcuffed and after he was examined by EMS.
The questions and answers from the cross-examination on Page 24 of the transcript of the hearing on October 29, 2021 are as follow
"Q. Were you questioning him while - before the ambulance got there while he was handcuffed?
A. No, my main concern was that he was okay. I asked if he was injured or anything.
Q. Do you remember the questions or no? Just - you - just general questions that you normally would ask?
A. Correct."
The trooper further testified that the assistance of a drug recognition expert was eventually sought out and the defendant was transferred to his trooper station. At the station the defendant was read the standard refusal and Miranda warnings. The defendant eventually refused to take the chemical breath test.
During defense counsel's initial cross-examination the trooper reiterated his observations of the defendant's vehicle and his pursuit of the defendant's motor vehicle across the Irondequoit Bay Bridge and into the Town of Webster, where the vehicle pulled over, presumably just past the Bay Road off ramp. The trooper testified that upon approaching the defendant's vehicle he asked the defendant to exit the his vehicle. Once out of his vehicle the defendant was immediately turned around handcuffed and then patted down. The trooper agreed that he did not ask the defendant for his license, or registration. Nor did he ask him any preliminary questions before directing him out of the vehicle. Nor was there any indication on cross-examination that the trooper observed any indicia of intoxication prior to putting the defendant in handcuffs upon his exiting his vehicle.
On direct examination the testimony was that the defendant was not placed in the trooper's vehicle, but was kept outside of the vehicle to await Emergency Medical Services [EMS], which was called to check him over. EMS did in fact arrive at the scene. While waiting for EMS the defendant remained handcuffed. But was un-handcuffed upon EMS escorting him to the ambulance. The trooper could not remember if the defendant was actually placed inside the ambulance for an examination by the paramedics. The trooper testified that he did not read the defendant his Miranda rights prior to the arrival of EMS. On cross-examination the trooper testified that after he took the defendant into custody he placed him in the back of his car.
On page 8 of the transcript of the continuation of the hearing on April 1, 2022 the questions and answers from the cross examination were as follows:
"Q. Okay. And you took my client into custody immediately at 9:43, correct?
A. He was detained, yes.
Q. Did you call in, one in custody at 9:43?
A. I - it says on the job card I did, yes.
Q. Did other officers call in, one in custody at 9:43?
A. I believe it was that one job, yes.
Q. And that would require my client was handcuffed at that time and placed in the back of your squad car or in one of the other officers' squad cars"
A. He was detained and placed in the back seat of my vehicle.
Q. Okay. So he was not free to leave, correct?
A. Correct."
After cross-examining the trooper, relative to his administration of the roadside sobriety tests, defense counsel inquired as to whether the People were in possession of any body cam footage taken by two Webster Police Officers who arrived at but only briefly remained at the scene of the arrest or of any video footage taken by the EMS. Defense counsel's cross-examination was suspended and the hearings were adjourned to permit the People to inquire as to the existence of said discovery materials. Upon resuming the hearings on April 1, 2022 it was confirmed that no body cam or dash cam existed. At which point defense counsel proceeded to continue his cross-examination of Trooper Delcorvo.
The Trooper reiterated that he stopped the defendant's truck at about 9:43 A.M., and that there were two other trooper cars at the scene of the stop. He testified that the defendant was immediately taken into custody. In the words of the Trooper Delcorvo "He was detained, yes." At which time the defendant while handcuffed and placed in the back of the trooper's vehicle. Prior to doing so the defendant was patted down, but not searched. The trooper indicated that the defendant was arrested about a half hour later, and that he remained handcuffed in the back of the car until EMS arrived. The trooper had no discussion with the defendant prior to handcuffing him and placing him in the car other than asking him why he did not initially pull over. In any event the trooper called one in custody advising that he had the defendant in custody at 9:43 A.M. No further testimony was taken from the officer. Defense counsel's request to submit a written summation was granted and was subsequently received by the court. No written closing statement was received from the People.
Defense counsel is seeking suppression of all statements made to the troopers, dismissal of all vehicle and traffic offenses for which supporting depositions were demanded, but not provided, suppression of any evidence stemming from the stop and the arrest of the defendant without probable cause.
Issues Presented.
Did the defense counsel receive the supporting depositions as requested.
Should statements made by the defendant to the troopers be suppressed?
At what point was the defendant arrested?
Did the trooper have probable cause to arrest the defendant?
Legal Analysis.
Vehicle and Traffic Charges.
The charge of refusal to take breath test, VTL § 1194 (1)(b) is not a cognizable offense. (See People v. Adams, 201 A.D.3d 1311,1312, 161 N.Y.S.3d 613, 614 [4th Dept. 2022]) As a result, said charge is hereby dismissed. Pursuant to a demand of defense counsel on July 7, 2021, this court issued and Order for Supporting Deposition, dated July 8, 2021 relative to the charges of refusal to take breath test, VTL § 1194 (1)(b), failure to comply with a lawful order of a police officer, VTL § 1102, driving while impaired by drugs, VTL § 1192 (4), unlicensed operator, VTL § 509 (1), unsafe lane change, VTL § 1128 (c), unsafe lane change, VTL §1128 (a) and aggravated unlicensed operation, 3rd degree, VTL § 511 (1) (a).A supporting deposition relative to the charge of driving while ability impaired by drugs in violation of VTL § 1192 (4) was provided at the time of arraignment. However, supporting depositions were not provided relative to the remaining Vehicle and Traffic charges and must be and are hereby dismissed pursuant to CPL § 100.25 (2).
Arrest.
In the first instance, the trooper had probable cause to stop the defendant's vehicle. The trooper testified to observing various violations of the Vehicle and Traffic Law as set out above. The Court of Appeals has held that" We hold that where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate article I, § 12 of the New York State Constitution. In making that determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant." (People v. Robinson, 97 N.Y.2d 341,349, 741 N.Y.S.2d 147,151 [2001])
Next the trooper was justified in directing the defendant out of his vehicle. "In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car (see People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 [1989], citing Michigan v. Long, 463 U.S. 1032, 1047-1048, 103 S.Ct. 3469, 77 L.Ed.2d 1201 [1983]; Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 [1977])." (People v. Garcia, 20 N.Y.3d 317,321, 959 N.Y.S.464,466 [2012]).
The evidence indicates that upon approaching the defendant's vehicle, the trooper ordered the defendant out of his truck without any discussion or inquiry. Whereupon the defendant was immediately turned around toward his truck, patted down and handcuffed. The defense contends that the handcuffing of the defendant immediately upon ordering the defendant from his truck was an arrest conducted without probable cause. That begs the question as to what constitutes an arrest.
"An arrest occurs when a defendant is taken into custody or otherwise deprived of his freedom. This is an objective standard, based upon 'what a reasonable man... would have thought had he been in the defendant's position,' not based upon 'what the defendant thought.' See, People v. Yukl, 25 N.Y.2d 585, 588-589, 307 N.Y.S.2d 857, 256 N.E.2d 172 (1969), cert. den., 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 (1970). (Citations omitted.) See, also, People v. Payne, 41 A.D.3d 512, 513, 838 N.Y.S.2d 123 (2d Dept.2007); People v. Bailey, 140 A.D.2d 356, 358, 527 N.Y.S.2d 845 (2d Dept.1988); People v. Newson, 68 A.D.2d 377, 382, 417 N.Y.S.2d 264 (2d Dept.1979)." (People v. Lopez, 19 Misc.3d 465,468, 852 N.Y.S.2d 744,746 [2008])
The opinion of the officer is 'never determinative of the issue' as to whether an arrest has occurred.
Id.
" 'The law is settled that an arrest occurs when an individual is not at liberty to walk away." People v. Ruiz, 136 A.D.2d 493, 496, 523 N.Y.S.2d 814 (1st Dep't 1988); see also People v. Jones, 172 A.D.2d 265, 266, 568 N.Y.S.2d 88 (1st Dep't 1991)... ("An arrest is determined under an objective test of what a reasonable man, innocent of a crime, would have thought had he been in defendant's position."). Thus, '[e]ven without a technical formal arrest, a suspect's detention may in fact be the equivalent of an arrest, requiring probable cause.' People v. Hicks, 68 N.Y.2d 234, 239, 508 N.Y.S.2d 163, 500 N.E.2d 861 (1986)." (Vargas v. City of New York, 56 Misc.3d 523,530, 56 N.Y.S.3d 438,434-444 [2017])
Based on the facts presented herein considered objectively and applying the law to said facts, one must conclude that the defendant was under arrest immediately upon exiting his truck.
Probable Cause to Arrest.
Probable cause in New York is more accurately described as reasonable cause. The definition for reasonable cause is set out in CPL § 70.10 (2). "On a motion to suppress evidence, a defendant challenging the legality of a search and seizure bears the ultimate burden of proving illegality, but the People have the burden of going forward in the first instance to show the lawfulness of the police conduct (citations omitted)" (People v. Burton, 130 A.D.2d 675,676, 515 N.Y.S.2d 601,602 [1987]) In other words, the People must show that the officer had probable cause to make the arrest. Having ruled that the trooper had probable cause to stop the defendant's vehicle and was justified in ordering the defendant from the vehicle, and that the defendant was under arrest immediately upon exiting the vehicle, it must now be determined if the trooper had the requisite probable cause to make the said arrest. The Court of Appeals in People v. Vandover, 20 N.Y.3d 235,239, 958 N.Y.S.2d 83,85 [2012] held that in determining if there was probable cause to arrest for driving while impaired or intoxicated "The standard to be followed is that it is more probable than not that defendant is actually impaired." In fact "... the Court of Appeals had never addressed the issue of what constitutes probable cause to arrest in a VTL § 1192 case until it decided Vandover... in 2013."
(Gerstenzang, Handling the DWI Case in New York (2021-2022 ed) § 1:31 at 56)
(Gerstenzang, Handling the DWI Case in New York (2021-2022 ed) § 1:31 at 56)
That standard of "more probable than not" presupposes that the officer confronting a driver engages in an analysis of what he has observed before making an arrest. That analysis would include the driver's driving performance, whether the driver exhibits any physical indicia of intoxication, whether that person is steady on his or her feet, performance on roadside sobriety tests, results of the road side breath test, statements made to the officer during the investigatory stage of the encounter and the general demeanor of the driver.
Timeliness of Obtaining Probable Cause.
"The validity of an arrest depends upon existence of probable cause at the time of the arrest and cannot be based on evidence obtained as the result of an ensuing search... (citations omitted)." (People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500,502 [1974]) In other words one cannot base an arrest on evidence obtained after taking a person into custody. "In determining whether probable cause existed for a defendant's arrest, observations made, or evidence obtained subsequent to the arrest (such as incriminating statements, the results of a chemical test, etc. cannot be considered."
(Id. at 1:35 at 66)
In this case it appears that the arrest took place first. The evaluation of the defendant's possible impairment by the accumulation of evidence took place later. It appears that the trooper had a hunch that the defendant was operating his vehicle in an impaired condition, which would probably explain why he immediately arrested the defendant upon the defendant's exit from his vehicle. However, as is true with the stop and search of a vehicle "Mere 'hunch' or 'gut reaction' will not do."
(See People v. Sobotker, 43 N.Y.2d 559,564, 402 N.Y.S.2d 993,996 [1978] relative to the search and seizure of a vehicle,)
Conclusion of Law
The trooper did not have probable cause to arrest the defendant. Since there was no probable cause for the defendant's arrest any evidence obtained subsequent to the arrest must be suppressed. That would include any observations and/or statements of the defendant and the results of the preliminary roadside breath test. Accordingly, the defendant's motion to suppress is granted. This constitutes the decision and order of this court.