Opinion
No. CR-012918-22QN
02-27-2023
The People of the State of New York, v. Gilliland, Defendant.
For the People: Melinda Katz, District Attorney of Queens County (by Timothy Snyder & Pamela Byer) For Mr. Gilliland: Digiansante & Piergiovanni (by Lawrence Digiansante)
Unpublished Opinion
For the People: Melinda Katz, District Attorney of Queens County (by Timothy Snyder & Pamela Byer)
For Mr. Gilliland: Digiansante & Piergiovanni (by Lawrence Digiansante)
Wanda L. Licitra, J.
The People charge Mr. Gilliland with driving while intoxicated ("DWI"), (V.T.L. § 1192[3]), driving while ability impaired by alcohol ("DWAI"), (V.T.L. § 1192[1]), and driving while using a portable electronic device, (V.T.L. § 1225-d[1]). On January 26, 2023, on the defense's motion and at the People's consent, the court held a combined Ingle / Dunaway / Refusal hearing. The following constitutes the court's findings of fact and conclusions of law.
When hearings are granted on consent, the practice in New York of referring to suppression hearings by case names can cause unnecessary confusion. Before the hearing commenced, the People withdrew their consent to a Huntley hearing. They clarified that they never filed C.P.L. § 710.30 notice and do not intend to introduce any statements by Mr. Gilliland at trial. They then reaffirmed their consent to an" Ingle / Dunaway / Refusal" hearing. As is clear from these pre-hearing events and post-testimony arguments, the agreed-upon issues at the hearing are: (1) whether the fruits of the stop or arrest should be suppressed as violating the state or federal constitutions (Ingle / Dunaway); and (2) whether the alleged refusal to take a chemical test violated the requirements of V.T.L. § 1194 (Refusal). (See, e.g., Tr. at 35, lines 1-4 ["MR. SNYDER: Your Honor, the People in this case have the burden of proving that there was probable cause for conducting a vehicle and traffic stop."]; id. lines 18-20 ["The People in this case also have a burden in proving there was probable cause for the defendant's arrest."]; id. at 37, lines 10-12 ["[T]he refusal warnings were read in clear and unequivocal language and the defendant's refusal was persistent."]).
FINDINGS OF FACT
At the hearing, the People called one witness to testify, Officer Michael Fokianos, shield number 3098, of the NYPD's Highway Patrol Unit 3. The court finds Officer Fokianos generally credible, though, at some points, his answers were contradictory. Accordingly, the court makes the following specific findings of fact based on the officer's testimony, demeanor, and appearance when answering each question, as well as on the exhibits submitted.
On May 28, 2022, at around 3:00 a.m., Officer Fokianos was working a nighttime tour. He has worked for the NYPD for some time, has made approximately 200 arrests, and has received some training in recognizing intoxicated people. On that date and at that time, Officer Fokianos was with his partner, Officer Napolitano, in an unmarked police car. Officer Napolitano was driving the car, and Officer Fokianos was sitting in the front passenger seat. Both officers were in uniform.
While the officers were traveling on 35th Avenue in Queens, New York, they noticed a Toyota Corolla that they later learned Mr. Gilliland was driving. The car was a four-door sedan. 35th Avenue is a roadway with two lanes of travel, one going west and the other going east. There is a solid line between the two lanes. Officer Fokianos observed Mr. Gilliland's car traveling west. On cross examination, but not on direct, he testified that he saw a can thrown out of the driver's side of the car. He also testified that, at that time, he was five to six feet behind Mr. Gilliland's car. However, Officer Fokianos did not see whether the can came from the back or the front of the car. The can was never recovered. There were four other occupants, in addition to Mr. Gilliland, in the car at the time, three in the back and one in the front passenger seat.
The officer claims that this was a "beer can." Given that he claimed to see this can for the first time on cross examination, was inside of a car five feet behind Mr. Gilliland's car when he purportedly saw it, and never recovered the alleged can, the court does not credit his claim that it was a "beer" can. (See In re Robert D., 69 A.D.3d 714, 717 [2d Dep't 2010]).
The officers stayed behind Mr. Gilliland's vehicle. Mr. Gilliland then came to an intersection. He did not disobey any traffic devices or make any traffic violations. He then made a right onto a service road and got onto the entrance ramp to the northbound side of the Clearview Expressway. While Mr. Gilliland entered onto the Clearview Expressway, and while on that expressway, he was using his cellphone. During this time, Officer Fokianos saw Mr. Gilliland hold the cellphone in the air to show a video to the passengers in the backseat of the car. As Mr. Gilliland entered the Clearview Expressway from the right, a quarter of his vehicle passed into the center lane on the left once.
Across direct and cross examinations, Officer Fokianos gave various time frames for when he says he saw Mr. Gilliland use the cellphone. On direct, Officer Fokianos said that he saw Mr. Gilliland use the cellphone while "on" the "Clearview Expressway." (Tr. at 7, lines 1-22). Then on cross, he said he saw Mr. Gilliland use the cellphone when he was "entering the Clearview," (Tr. at 20, lines 13-17); when "entering the Clearview to getting on the Clearview ramp," (Tr. at 20, lines 18-24); and when "traveling to the entrance of the ramp," (Tr. at 22, lines 14-18). Given that one must generally operate a cellphone before and after displaying a video, it is also reasonable to conclude that Mr. Gilliland was using the phone shortly before and after the officer's observations. Taking all of this into account, viewing the testimony reasonably and in context, and considering Officer Fokianos' demeanor and appearance, the court concludes that Mr. Gilliland was using the cellphone as he was entering onto, and while on, the Clearview Expressway.
Fairly soon after Mr. Gilliland entered the Clearview Expressway, the officers activated their lights and sirens. Mr. Gilliland immediately pulled over smoothly and safely to the right shoulder of the roadway, and in doing so, he committed no traffic violations. The officers exited their car and approached the vehicle. They both approached on the driver's side.
Officer Fokianos asked Mr. Gilliland if he had been drinking and where he was headed. Mr. Gilliland responded that he was going up to the Bronx, had not been drinking, and was the designated driver. Officer Fokianos could smell alcohol coming from the car and the passengers appeared to him to have had drank alcohol. Officer Fokianos could also smell alcohol coming from Mr. Gilliland's breath and observed him to have bloodshot, watery eyes. Neither Officer Fokianos nor Mr. Gilliland were wearing masks at the time.
Officer Fokianos asked Mr. Gilliland to step out of the vehicle. He did. He then asked Mr. Gilliland to step to the rear of the vehicle. He again observed Mr. Gilliland to have an odor of alcohol on his breath and to have bloodshot, watery eyes. However, Mr. Gilliland also had steady balance, clear speech, and orderly clothes. Nonetheless, based only on his observations of Mr. Gilliland's eyes and breath, Officer Fokianos decided to arrest Mr. Gilliland for driving while intoxicated. He arrested Mr. Gilliland at 3:20 a.m.
Officer Fokianos then transported Mr. Gilliland to the 112th Precinct's Intoxicated Driver Testing Unit ("IDTU"). There, he asked Mr. Gilliland if he would consent to a chemical test of his breath. Mr. Gilliland said no. Mr. Gilliland was then informed of the consequences of refusing a chemical test. He was told that if he refused to submit to the test or any portion thereof, it would result in the immediate suspension and subsequent revocation of his driver's license or operating privilege for a minimum of one year, whether or not he is found guilty of his arrest charges, and that his refusal could be used as evidence against him at any trial, proceeding, or hearing resulting from the arrest. Mr. Gilliland was asked again if he would take the test, and he again said no. This occurred at 4:05 a.m.
CONCLUSIONS OF LAW
The court first considers the constitutional search and seizure issues raised by the Ingle / Dunaway portion of the hearing. At an Ingle / Dunaway hearing, the People have the initial burden of going forward with facts that establish, prima facie, that each police action was lawful. (See, e.g., People v. Harris, 192 A.D.3d 151, 157-58 [2d Dep't 2020]). Implicit in the People's burden of production is that their testimony and evidence offered must be credible. (Id.). "Credibility is a many faceted concept... requiring a careful assessment of a number of subtle factors before testimony can be labeled as believable or unbelievable." (People v. Wise, 46 N.Y.2d 321, 325 [1978]). If the People meet their burden of production, the burden then shifts to the defense to show, by a preponderance of the evidence, that the police act was unlawful. (See, e.g., Harris, 192 A.D.3d at 157-58).
The People argue they established that police lawfully stopped Mr. Gilliland's vehicle because officers observed him using a cellphone while driving, and the court agrees. An automobile stop is lawful only when based on "probable cause that a driver has committed a traffic violation"; "reasonable suspicion that the driver or occupants have committed, are committing, or are about to commit a crime"; or "nonarbitrary, nondiscriminatory, uniform highway traffic procedures." (People v. Hinshaw, 35 N.Y.3d 427, 430 [2020] [internal quotation marks omitted]). Operating a motor vehicle while using a portable electronic device is a traffic infraction. (V.T.L. § 1225-d[1]). Here, the People established that Mr. Gilliland committed that infraction. The defense posits no additional circumstances that would otherwise render this stop illegal. (See, e.g., People v. Jones, 210 A.D.3d 150 [3d Dep't 2022] [holding that stops motivated by racial profiling are illegal in New York even if there is probable cause of a traffic infraction]). Accordingly, the stop was lawful.
The People next argue that they established the police lawfully arrested Mr. Gilliland for violating V.T.L. § 1192, but here, the court disagrees. For determining whether an officer has probable cause to arrest a person for such an offense, the standard is whether "it is more probable than not that the defendant is actually impaired." (People v. Vandover, 20 N.Y.3d 235, 239 [2012]). Therefore, the People should provide evidence that the accused person exhibited "dimensions of actual physical coordination impairment." (People v. Gullo, 51 Misc.3d 150 [A], at *1 [App. Term, 2d Dep't 2016]; see also People v. Rich, 25 Misc.3d 126 [A], at * 1 [App. Term, 2d Dep't 2009]). These dimensions commonly include-but, of course, are not limited to-"slurred speech and unsteadiness." (Gullo, 51 Misc.3d 150[A], at *1; see also People v. Anzalone, 72 Misc.3d 140 [A], at *1 [App. Term, 2d Dep't 2021]). Other examples of actual physical coordination impairment could include unexplained erratic driving, (People v. Hillman, 71 Misc.3d 127 [A], at *2 [App. Term, 2d Dep't 2021]; People v. Mohabir, 77 Misc.3d 1219 [A], at *4 [Crim. Ct., Queens County 2023]); rambling, (People v. Crane, 156 A.D.2d 704 [2d Dep't 1989]); traffic violations indicative of impairment, (People v. Freeman, 37 Misc.3d 142 [A], at *2 [App. Term, 2d Dep't 2012]); or an accident consistent with losing control, (People v. Hogue, 136 A.D.3d 1351 [4th Dep't 2016]; People v. McKenzie, 52 Misc.3d 1217 [A], at *3 [Crim. Ct., Kings County 2016]).
The People only explicitly argued that probable cause existed for "driving while intoxicated." (Tr. at 36, lines 15-22). However, the court takes a broader reading of the People's argument to include probable cause for driving while impaired, (V.T.L. § 1192[1]), and not merely driving while intoxicated. A broader reading of the People's argument is justifiable because "the legality of an arrest... is not conditioned upon whether the arresting officer specified the correct subdivision of Vehicle and Traffic Law § 1192, or upon his belief as to which subdivision had been violated. All that is required is that [the officer] have had reasonable cause to believe that defendant had violated Vehicle and Traffic Law § 1192." (People v. Hilker, 133 A.D.2d 986, 987-88 [3d Dep't 1987]; see also People v. Gingras, 22 Misc.3d 22, 23 [App. Term, 2d Dep't 2008] [same]).
Overall, there are many observations from which the police could analyze whether it is "more probable than not" that a person is "actually impaired": "the driver's driving performance, whether the driver exhibits any physical indicia of [impairment], 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." (People v. Conrad, 75 Misc.3d 1224 [A], at *5 [Just. Ct., Monroe County 2022]). A person's own admissions about how much, and when, they drank can also indicate whether the person may be impaired at the time they drove. (See, e.g., People v. Maher, 52 Misc.3d 136 [A], at *2 [App. Term, 2d Dep't 2016]).
But simply establishing that a person drank some unknown quantity of alcohol and then drove a car-without any indication of impairment-does not itself establish probable cause to arrest. (See Vandover, 20 N.Y.3d at 237-39; People v. Vandover, 31 Misc.3d 131 [A], at *1 [App. Term, 2d Dep't 2011]; see also People v. Cruz, 48 N.Y.2d 419, 426 [1979] ["That is not to say, of course, that every person who drinks before driving violates the law."]). Indeed, an "odor of an alcoholic beverage," "glassy, bloodshot eyes," and "a fatigued demeanor" are "insufficient to establish probable cause for impairment" to "any extent." (Vandover, 31 Misc.3d 131[A], at *1; see also Vandover, 20 N.Y.3d at 237-39). These facts simply establish that the person drank some alcohol before driving a car, which alone, does not establish probable cause that the person is actually impaired. (Cruz, 48 N.Y.2d at 426; Vandover, 20 N.Y.3d at 237). "[T]he Legislature recognized that the average person can consume a certain amount of alcohol without impairing his ability to operate a motor vehicle as he should." (Cruz, 48 N.Y.2d at 426). Therefore, to constitute probable cause, there must be some additional sign that the alcohol consumption-whether by direct observation or by inference-has "actually impaired" the person's physical coordination. (Vandover, 20 N.Y.3d at 237).
Moreover, "[c]onduct equally compatible with guilt or innocence will not suffice." (Id.; see also People v. DeBour, 40 N.Y.2d 210, 216 [1976] ["We have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause."]). "In making such a judgment, we must also bear in mind that in dealing with probable cause[,] we deal with probabilities." (People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981] [internal quotation marks omitted]). "These are not technical; they are the factual and practical considerations of everyday life." (Id.). As a result, the court cannot simply apply a formula. It must look at the totality of the circumstances known to the seizing officer to determine whether it appeared "more probable than not" that Mr. Gilliland's physical coordination was "actually impaired." Only in that circumstance will a warrantless arrest for DWAI be justified.
In applying these principles, the court cannot say that the hearing established it was more probable than not that Mr. Gilliland's physical coordination was actually impaired. The officer testified that Mr. Gilliland's balance was steady when getting out of his car and walking to the rear of the vehicle. In answering the officer's questions coherently, his speech was clear. The officer had followed Mr. Gilliland's car as it traveled on a two-way roadway separated by a solid line, navigated an intersection, and then merged onto the Clearview Expressway. During this time, he did not specify-nor do the People charge-any traffic infractions other than driving while using a cellphone. Upon activating his lights, the officer observed Mr. Gilliland immediately navigate, smoothly and safely, to the shoulder of the expressway. The officer even readily admits that he based his arrest solely on Mr. Gilliland's eyes and odor, and not on any observations of physical or motor impairment.
Tellingly, the People do not explicitly argue that Mr. Gilliland's physical coordination was in any way actually impaired. Instead, they argue that Officer Fokianos had probable cause for a V.T.L. § 1192 arrest only because he observed "bloodshot watery eyes and a strong odor of alcohol emanating from defendant's breath." (Tr. at 36, lines 1-22). But as explained above, that articulation of the law is wrong. And it is betrayed by the very cases the People cite, both of which involved evidence of actual impairment. (Tr. at 35, lines 18-25; Tr. at 36, lines 1-22; People v. Blajeski, 125 A.D.2d 582 [2d Dep't 1986] [involving a person who had "slurred speech" in addition to bloodshot eyes and an odor of alcohol]; People v. Farrell, 89 A.D.2d 987, 988 [2d Dep't 1982] [involving a person who had "slurred speech" and a "staggered gait" and had rear-ended another driver]).
Despite the People's failure to identify any indicia of impairment, and not simply alcohol consumption, the court scours the record for any such evidence. The only possible evidence of impairment is that the officer observed Mr. Gilliland move into the center lane to his left and back, once, while merging onto the Clearview Expressway from the right. But when viewed in totality against all the evidence of Mr. Gilliland's non-impairment-the lack of any other problematic traffic maneuvers, pulling the car over to the side of the expressway smoothly and safely, clear speech, and steadiness on his feet-the court cannot reasonably interpret this isolated move as evidence of alcohol impairment. It is not unexpected that a driver may move from the right lane into the next lane on the left, with some uncertainty, when merging onto an expressway from the right. But in any event, in this case, this single observation is more likely explained by the fact that Mr. Gilliland was using his cellphone at the time. After all, using a cellphone while driving "diverts a driver's attention away from the road and prevents the full use of a driver's hands." (See Clark v. New York State Dep't of Motor Vehicles, 151 A.D.3d 1410, 1411 [3d Dep't 2017]). But "[c]onduct equally compatible with guilt or innocence [of violating V.T.L. § 1192] will not suffice" to establish probable cause. (Vandover, 20 N.Y.3d at 237). And other than this isolated fact, which is more likely explained by Mr. Gilliland's cellphone use, the record is devoid of any other possible indicia of impairment.
In sum, the People failed to establish that the police lawfully arrested Mr. Gilliland for violating V.T.L. § 1192. As a result, all the fruits flowing from that arrest-including the police's subsequent observations and the alleged refusal to take a chemical test-must be suppressed. The Ingle / Dunaway motion is granted as to the fruits of the arrest.
The remaining" Refusal" issue of whether the circumstances around the alleged refusal complied with V.T.L. § 1194 is moot.
The foregoing constitutes the order and decision of the court.