Opinion
05-12-0035.
Decided December 31, 2007.
Thomas P. Halley, Esq., Attorney for Defendant, Poughkeepsie, New York.
William V. Grady., Esq.Cindy Murphy, Esq., Of Counsel, Dutchess County District Attorney, Poughkeepsie, New York.
The defendant, Patrick J. Leary, is charged with two counts of Driving While Intoxicated in violation of VTL § 1192 (2), (3), and Speeding in violation of VTL § 1180(d). A pre-trial hearing was ordered to determine defendant's motion to suppress. On March 23, 2006, a Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including chemical test results and statements.
The sole witness at the hearing was Trooper Peter W. McSorley, Jr. of the New York State Police who testified on behalf of the People. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.
Findings of Fact
On the evening of December 3-4, 2005, Trooper McSorley was on patrol in a marked State Police patrol car (1K33) working the "2 Tour" shift from 7:00 p.m. on December 3rd to 7:00 a.m. on December 4th. In the middle of the shift from 12:00 a.m. to 5:00 a.m., he was partnered with Trooper Jonathan Burleigh in the same trooper car, with Trooper McSorley driving and Trooper Burleigh in the passenger seat. At 1:30 a.m., they were driving southbound on Route 9 just north of the Culinary Institute of America when Trooper McSorley saw a 1997 Ford red pick-up truck pass them heading northbound on Route 9. Based on both his visual estimate and radar, the pick-up truck was going 67 mph where the speed limit is 45 mph. The radar unit in the State Police car, when activated, displays the speed of both the police car and the other car in the target zone. There was no other car between Trooper McSorley's car and the Ford pick-up being observed on radar.
Trooper McSorley turned around his police car and followed the truck up Route 9 where he observed it make a left hand turn past St. Andrews Road into the parking lot of the Toucan Bar Grill. He activated his emergency lights and both Trooper McSorley and Trooper Burleigh approached the pick-up truck which contained four occupants. Trooper McSorley asked the driver for his license and registration which he produced. The driver was the defendant, Patrick J. Leary, age 20. He had a strong odor of alcohol coming from his breath, and his eyes were glassy, watery, and bloodshot. When asked where he was coming from, he replied from home. When asked whether he had been drinking, he responded "I had a few beers" and then said, "I had two beers." At that point, Trooper McSorley asked him to exit his vehicle. When he did so, he appeared to be swaying as he walked towards the trooper, and had trouble standing. He was swinging back and forth and was staggering a little. At some point prior to arrest, defendant further stated, "I know I shouldn't have been driving." No Miranda rights were given to the defendant at the scene.
Trooper McSorley then administered four field sobriety tests in the northern parking area of the Toucan Bar Grill. Prior to doing so, the trooper asked defendant if he had any physical limitations or wore contact lens. The defendant answered no to both questions. The tests were conducted in the parking lot on ground that was relatively flat without rocks or large pebbles.
Defendant was first given the Horizontal Gaze Nystagmus test. The defendant failed the test in that his eyes lacked smooth pursuit at maximum deviation. His eyes were involuntarily jerking, and he seemed to have a difficult time focusing on the pen object held by the trooper.
The defendant did better on the walk and turn test by walking nine steps in a straight line. He used his arms to balance himself, but his performance was considered "okay" by Trooper McSorley.
On the third test, the one leg stand, he made it to "3-1000" three times counting "1-1000, 2-1000, 3-1000" after which each time his foot touched the ground. When he was directed to start where he left off at "4-1000", he failed to do so. At one point, he had to put his hand on the pick-up truck to balance himself.
In the alphabet test, defendant was directed to count from "E" to "O", but instead counted from "E" to "W" without stopping at "O" and thus failed the test.
Trooper McSorley was unaware or could not provide information as to the percentage of accuracy or reliability of any field sobriety test given to the defendant. He conceded that none of the tests are 100% accurate. He took no notes as to the field sobriety tests. He stated that while notes are encouraged, they are not mandatory.
The defendant was not given an Alco-Sensor or breath screening test for the presence or absence of alcohol on his breath.
After the four field sobriety tests were administered, Trooper McSorley placed the defendant under arrest for Driving While Intoxicated. He believed defendant was intoxicated based upon his personal and professional experience. He has observed many persons, both professionally and socially, who have consumed alcohol and became intoxicated. He has also observed people who drank alcohol and did not become intoxicated. As a state trooper since May, 1999, Trooper McSorley had personally made 75-100 arrests for Driving While Intoxicated, and had been present at the scene to observe and/or assist in nearly another 100 arrests for Driving While Intoxicated, for a total of 175-200 DWI arrests as an arresting officer or direct observer. He had successfully completed all courses at the State Police Academy for Detecting DWI Drivers, and the recognition of sobriety or intoxication in drivers. The courses amounted to between 40 and 80 hours of required course work.
Trooper McSorley arrested defendant for Driving While Intoxicated based upon his cumulative performance on all the field sobriety tests, not for his performance on any specific test. It was also based on the odor of alcohol on his breath, his glassy, watery, bloodshot eyes, and his admission of drinking "a few" or "two" beers as an underage drinker.
Conclusions of Law
Where physical evidence is sought to be suppressed, the general rule is that the People must go forward with evidence tending to demonstrate a lawful rationale for police conduct, but that the defendant has the ultimate burden of proving a lack of basis for the police action by a preponderance of the evidence. People v. Berrios, 28 NY2d 361 (1971). The People must prove the voluntariness of defendant's statement beyond a reasonable doubt. People v. Anderson, 69 NY2d 651 (1986).
In a post-hearing memorandum, defendant argues that in a probable cause hearing, the People are under an obligation to prove probable cause beyond a reasonable doubt, relying on People v. Early, 244 AD2d 769 (3rd Dept. 1997). It appears that the Third Department's decision in Early has never been criticized or overruled by any other court, nor has it directly been followed. A subsequent Third Department decision indirectly refutes the proposition. People v. Kowalski, 291 AD2d 669 (3rd Dept., 2002)("when a defendant is charged with driving while intoxicated, probable cause exists if the arresting officer can demonstrate reasonable grounds to believe that the defendant has been driving in violation of Vehicle and Traffic Law § 1192").
As noted by the Poughkeepsie City Court in People v. Knapp, 9 Misc 3d 1113(A), 808 N.Y.S.2d 919 (2005):
"In the opinion of this Court, the Early `beyond a reasonable doubt'proposition is contrary to established law, both in the Third Department and elsewhere. The Second Department, the controlling authority in the instant case clearly holds a position contrary to that stated by the Early court. In People v. Wright , 8 AD3d 304 , 306 (2nd Dept., 2004), the court stated: "Probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same experience as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense (citations omitted). A finding of probable cause does not, however, require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case (citations omitted).
Rather, "it need merely appear more probable than not that a crime has taken place and that the one arrested is its perpetrator" (citations omitted).
The court in Knapp goes on to suggest, persuasively to this Court, that the Third Department (or the printer of the decision) merely misstated the law by mistakenly leaving out the word "not" since the Early court's language, as written, is exactly opposite the actual law as stated by the Court of Appeals in People v. Bigelow, 66 NY2d 417, 423 (1085). Whether the absence of the word "not" in Early is a mistake or not, it is not a correct statement of law and will not be followed by this Court. To hold otherwise would be to accept the contradictory premise that one standard of proof, i.e. probable cause, must be established by evidence sufficient to satisfy a greater standard of proof, indeed, the highest standard of proof in our legal system of "beyond a reasonable doubt." That is, it appears to engage in an oxymoron to suggest that one standard of proof must be proven by another standard of proof.
Probable cause or reasonable cause to arrest is a common sense standard which has emerged from the case law and has been statutorily defined by CPL § 70.10(2). The terms "reasonable" and "probable" are used interchangeably.
"Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay.
CPL § 70.10(2)
The legal standard for determining probable cause is set forth in People v. Carrasquillo, 54 NY2d 248 (1981) which states as follows:
In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice.
54 NY2d at 252 (1981)
A finding of probable cause does not require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case. Rather it need merely appear more probable than not that a crime has taken place and that the one arrested is the perpetrator. People v. Hill, 146 AD2d 823, 824 (3rd Dept., 1989); see People v. Attebery, 223 AD2d 714, 715 (2nd Dept., 1996). Moreover, in determining whether a police officer has probable cause for an arrest, the emphasis should not be narrowly focused on. . . . any. . . . single factor, but on an evaluation of the totality of circumstances, which takes into account "the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents." People v. Wright, supra, 8 AD3d 304, 306-307 (2nd Dept., 2004), People v. Bothwell, 261 A.D. 232, 234 (1st Dept., 1999), quoting People v.; Graham, 211 AD2d 55, 58-59 (1st Dept., 1995). In making the determination to arrest, the officer is not obligated to eliminate all possible innocent explanations for incriminating facts [ see, People v. Mercado, 68 NY2d 874, 877 (1986); People v. Daye, 194 AD2d 339, 340 (1st Dept., 1993)]. Moreover, "[a] party may act with probable cause even though mistaken . . . if the party acted reasonably under the circumstances in good faith." People v. Colon, 60 NY2d 78, 82 (1983); Villalobos v. County of Nassau, 15 Misc 3d 135 (A), 839 N.Y.S.2d 437 (App. Term, 9th and 10th Jud. Dists., 2007)
In People v. Farrell, 89 AD2d 987 (2nd Dept., 1982), the Appellate Division, Second Department articulated the reasonable cause standard as it applies to drinking and driving offenses. The inquiry is:
[W]hether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor.
89 AD2d at 988 (2nd Dept., 1982)
In People v. Bratcher, 165 AD2d 906 (3rd Dept., 1990), lv. den. 77 NY2d 958 (1991) the Appellate Division, Third Department concluded that there was a valid arrest for driving while intoxicated where the police officer observed defendant's car weaving in its own lane and crossing over into the opposite lane of travel. Thereafter, the officer had "ample opportunity" to observe that the defendant had red, watery eyes, slurred speech, a strong odor of alcohol on his breath, a staggering walk, and a sway while standing.
In People v. McCarthy, 135 AD2d 1113 (4th Dept., 1987), probable cause was established where the defendant's eyes were bloodshot, his speech slurred, and there was a strong odor of alcohol coming from the car. Also, the defendant was given a roadside Alco-Sensor test with positive results.
In People v. Asher , 16 Misc 3d 89 , (App. Term, 9th 10th Jud. Dists., 2007), the Court held that probable cause was established to uphold an arrest for Driving While Intoxicated based on credible testimony that the defendant displayed signs of intoxication, failed field sobriety tests and admitted to having had two glasses of wine.
A traffic stop constitutes a limited seizure of the person of each occupant of the vehicle which, to be constitutional, must be justified at its inception. People v. Banks, 85 NY2d 558, 562 (1995), cert. den. 516 U.S. 868 (1995). Trooper McSorley's observation of the defendant speeding, both by visual estimate and radar, provided the officer with a lawful basis for stopping the vehicle. People v. Robinson, 97 NY2d 341 (2001); People v. Wright, 42 AD3d 942 (2nd Dept., 2007); VTL § 1180(d).
The defendant interposed a general objection to testimony by Trooper McSorley regarding the Horizontal Gaze Nystagmus test in the absence of a foundation that he had received training in the administration of such a field sobriety test. Trooper McSorley then recounted his extensive training and successful completion of all courses taken at the New York State Police Academy in Albany, New York for standardized field sobriety tests. This included the Horizontal Gaze Nystagmus. Since the People laid a proper foundation regarding the officer's qualifications, training and technique for administering the HGN test, it is properly admissible in this suppression hearing. People v. Hammond , 35 AD3d 905 , 907 (3rd Dept., 2006), lv. den. 8 NY3d 946 (2007); People v. Gallop, 302 AD2d 681, 684 (3rd Dept.), lv. den. 100 NY2d 594 (2003). Accordingly, defendant's objection is overruled.
The Court concludes probable cause was established to arrest defendant for Driving While Intoxicated following his lawful detention upon pulling into a parking space in the parking lot of the Toucan Bar Grill. Probable cause was based upon the Trooper McSorley's observation of the indicia of alcohol consumption such as the odor of alcohol on the breath, and watery, glassy eyes, defendant's failure to pass three of the four field sobriety tests, and his admissions that he had consumed a few or two beers, and should not have been driving. The Court is aware of the continuing controversy regarding the Horizontal Gaze Nystagmus test and whether it is to be accepted in court as scientifically reliable under Frye. See, Gerstenzang Sills, § 8:4, "Handling a DWI Case in New York — 2007-2008 Edition (Thomson-West, 2007). The Court also has additional concerns about the lack of any contemporaneous notes regarding the four field sobriety tests given to defendant. The Court relies less on the field sobriety tests in this case than on the close, direct and overall observations of defendant by an experienced and trained police officer who had been involved in 175-200 arrests for Driving While Intoxicated. In his professional opinion, the defendant was intoxicated. The Court finds that laying aside any reliance on the field sobriety tests arguendo, Trooper McSorley had an ample basis to arrest the defendant for Driving While intoxicated based on his direct observations of the defendant, including his swaying, swinging back and forth, staggering and having difficulty standing up at times, as well as defendant's admissions, Moreover, Trooper McSorley knew the defendant was 20 years old and had been drinking alcohol by his own admission, thereby admitting to a violation of VTL § 1192-a (Zero Tolerance law for underage drivers who operate a motor vehicle after consuming alcohol).
In sum, the Court finds that sufficient evidence existed in this case to provide the officer with reasonable grounds to believe that defendant had been driving in violation of VTL § 1192, and thereby provided probable cause for the defendant's arrest for Driving While Intoxicated. The evidence obtained as a result of the arrest was, therefore, lawfully obtained.
A defendant who has been temporarily detained pursuant to a routine traffic stop, including suspected driving while intoxicated offenses, is not considered to be in custody for Miranda purposes. People v. Parris , 26 AD3d 393 (2nd Dept.), lv. den. 6 NY3d 851 (2006); People v. Myers, 1 AD3d 383 (2nd Dept., 2003), lv. den. 1 NY3d 631 (2004); People v. MacKenzie , 9 Misc 3d 129(A), (App. Term, 9th and 10th Jud. Dists., 2005). A reasonable initial interrogation during such stop is therefore held to be merely investigatory and does not require Miranda warnings. See, People v. Mackenzie, supra.; People v. Mathis, 136 AD2d 746 (2nd Dept), lv. den., 71 NY2d 899 (1988). Moreover, Miranda warnings are not required before the administration of performance tests. People v. Hager, 69 NY2d 141 (1987); People v. Myers, supra at 383.
Trooper McSorley's temporary roadside detention of the defendant, after stopping the defendant's vehicle for a traffic infraction, was permissible and non-custodial in nature, and he was not required to administer Miranda warnings before conducting a roadside investigation.
The Court accordingly determines that defendant's statements in the parking lot of the Toucan Bar Grill shortly before his arrest were voluntary beyond a reasonable doubt and admissible at trial.
Based upon the above findings of fact and conclusions of law, the defendant's motion to suppress physical evidence and statements is denied in all respects.