Opinion
2014-0426
09-30-2016
People of the State of New York, v. Lee Nuwesra, Defendant.
James McCarty, Esq. Acting District Attorney For the People 1940 Commerce Street Suite 204 Yorktown Heights, New York 10598 By: Catalina Blanco Buitrago, Esq. Lenihan & Associates Attorneys for Defendant 235 Main Street White Plains, New York 10601 By: James M. Lenihan, Esq.
James McCarty, Esq.
Acting District Attorney
For the People
1940 Commerce Street
Suite 204
Yorktown Heights, New York 10598
By: Catalina Blanco Buitrago, Esq. Lenihan & Associates
Attorneys for Defendant
235 Main Street
White Plains, New York 10601
By: James M. Lenihan, Esq. Reginald J. Johnson, J.
In this case, the Defendant was charged with Aggravated Driving While Intoxicated [Vehicle & Traffic Law "VTL" 1192.2A], Common Law Driving While Intoxicated [VTL 1192.3], Driving Across Hazard Marking [VTL 1128.D], and Failing to Use Designated Lane [VTL 1128.C]. After the conclusion of the second Dunaway and Huntley hearings, the Court permitted the parties to submit Post Hearing Memorandums of Law.
Procedural History
On March 31, 2014, the Defendant was arraigned on the following charges: VTL 1192.2A, VTL1192.3, VTL 1128.D, and VTL 1128.C. The Defendant entered a plea of not guilty at the arraignment.
On July 7, 2014, Open File Discovery was completed.
On December 16, 2014, the Court held Dunaway and Huntley hearings. At the hearings, the People were represented by Assistant District Attorney Rashawn Woodley and the Defendant was represented by Anthony J, Keogh, Esq.
On January 26, 2015, the Court issued a Decision and Order finding that the People satisfied their burdens under Dunaway and Huntley.
On September 28, 2015, the People and the Defendant consented to vacating the Decision and Order dated January 26, 2015 due to a technicality involving the swearing-in of the People's witness. Specifically, the hearing transcript did not reflect the witness's response to the administration of the oath. Accordingly, the Court vacated the Decision and Order dated September 28, 2015.
On February 1, 2016, the Court scheduled the second Dunaway and Huntley Hearings for March 15, 2016.
On March 15, 2016, the Court commenced Dunaway and Huntley hearings. The hearings were adjourned to March 18, 2016.
On March 18, 2016, the Dunaway and Huntley hearings recommenced and adjourned to May 20, 2016.
On May 20, 2016, the Dunaway and Huntley hearings concluded and the parties were permitted to submit Post Hearing Memorandums of Law after the parties received the transcript of the hearings.
On June 20, 2016, the Court ordered the parties to submit Post Hearing Memorandums of Law on July 18, 2016.
On July 18, 2016, the Defendant requested an extension of time to submit his memorandum on August 1, 2016.
On August 1, 2016, the People and the Defendant submitted Post Hearing Memorandums of Law. The Court set a decision date for September 30, 2016.
Findings of Fact
Dunaway and Huntley hearings were conducted by this Court commencing March 15, 2016, March 18, 2016, and May 20, 2016. The People presented Trooper Jason Rosand as its witness. The Defendant neither testified nor presented any witnesses on his behalf. The Court considered the testimony of Trooper Jason Rosand to be credible. The Court now makes the following findings of fact:
Trooper Jason Rosand was assigned to the SP Cortlandt Barracks on March 21, 2014 where he worked the Shift 2 tour from 7:00 p.m. to 7:00 a.m. and patrolled the Cortlandt, Route 9, Buchanan, and Montrose areas (Tr. 1 at pp. 16-17). Prior to 10:20 p.m., Trooper Rosand was conducting a vehicle stop for speeding on Route 9 northbound on the right shoulder of the roadway by the overpass for Montrose Station Road in the Town of Cortlandt (Tr. 1 at pp. 17-18). At some point during the stop, a second unidentified driver pulled alongside Trooper Rosand and informed him that he was following a vehicle whom he believed was being operated by an intoxicated driver and that Trooper Rosand should stop him (Tr. 1 at pp. 20-21; Tr. 2 at pp. 55-58). In response, Trooper Rosand looked up the road toward the Defendant's vehicle and saw it approximately ¼ mile away driving on the shoulder of the roadway (Tr 1 at pp. 21-22; Tr. 2 at pp. 62-64). Trooper Rosand could see that half of the Defendant's vehicle was driving over the fog line (Tr. 2 at p. 64). Trooper Rosand returned the driver's license and registration to the driver that he stopped for speeding and then proceeded to follow Defendant's vehicle (Tr. 1 at p. 23; Tr. 2 at p. 66).
As Trooper Rosand proceeded northbound Route 9 behind the Defendant's vehicle, with night visibility clear and extremely light traffic, he never lost sight of Defendant's vehicle (Tr 1 at pp 37-39; Tr. 3 at p. 184). It took Trooper Rosand approximately 14 seconds to catch up to the Defendant's vehicle (Tr. 1 p. 39). Trooper Rosand followed the Defendant's vehicle from the Town of Cortlandt to the City of Peekskill on Route 9 to see if he could observe the Defendant commit any further vehicle and traffic violations, which he did observe the Defendant commit when he saw his vehicle go over the center divider line (the dotted line in the roadway) with half of his vehicle, then move to the left and then over correct and move to the right over the fog line and shoulder (Tr. 1 at pp. 46-48). Trooper Rosand observed two violations of the vehicle and traffic law while traveling northbound on Route 9 behind the Defendant in the City of Peekskill (Tr. 1 at pp. 51-52).
The Defendant's vehicle exited Route 9 northbound via the Welcher Ave exit where Trooper Rosand activated his emergency lights, after which the Defendant proceeded down the ramp to Welcher Ave and made a left turn onto Welcher Ave and then another left turn onto 9A (Albany Post Road) without signaling at that light (Tr. 1 at pp. 52-54). The Defendant then made a second right into a Mobil Gas Station on Albany Post Road and stopped with Trooper Rosand stopped behind him (Tr. 1. pp. 55-56).
After both vehicles stopped, Trooper Rosand approached the Defendant's vehicle and requested his driver's license and registration (Tr. 1 at p. 59). Trooper Rosand asked the Defendant where he was coming from and going to and the Defendant responded that he was coming from his home and headed to his restaurant in Buchanan called the El Condor (Tr. 1 at p. 62). Trooper Rosand also asked the Defendant if he had consumed any alcohol that night and the Defendant responded that he had not (Tr. 1 at p. 63). During their conversation, Trooper Rosand noticed that the Defendant had bloodshot, droopy and glassy eyes, slurred speech, and emitted an odor of alcohol from his person and from inside his vehicle (Tr. 1 at p. 61-64). Trooper Rosand asked the Defendant if he had consumed alcohol and the Defendant said that he did not (Tr. 1 at p. 63). Based on Trooper Rosand's preliminary observations, he wanted to conduct Standardized Field Sobriety Tests (SFSTs) on the Defendant (Tr. 1 at p. 65).
Trooper Rosand always conducts these four SFSTs when he is trying to determine if a motor vehicle operator is intoxicated: Nystagmus, Walk-and-Turn, One Leg Stand, and Romberg tests (Tr. 3 at p. 141). After the Defendant failed all of the SFSTs and provided a Portable Breath Test (PBT) sample of .19%, Trooper Rosand made a determination that the Defendant was operating his motor vehicle while under the influence of alcohol and then placed him under arrest (Tr. 1 at pp. 84-102; Tr. 3 at p. 154).
After transporting the Defendant to the SP Cortlandt Barracks, Trooper Rosand asked the Defendant questions contained in People's Exhibit 11 before releasing him (Tr. 3 at pp. 160-161).
Lastly, Trooper Rosand testified that he followed the Defendant's vehicle based on the information he received from the unknown civilian tipster and based on his personal observation of the Defendant driving over the fog line (Tr. 3 at pp. 167, 173-174). Trooper Rosand eventually made the determination to stop the Defendant when he observed him drive over the fog line multiple times, then drive over the dotted line in the center of the roadway, then drive over the hazard markings to the ramp, and then make a left turn at the light without signaling (Tr. 3 at pp. 180-181).
Issues Presented
Did Trooper Rosand have probable cause or reasonable suspicion to effect a lawful vehicle stop of the Defendant's vehicle?
Did the People satisfy their burden that the statements made by the Defendant were voluntarily and intelligently made beyond a reasonable doubt?
For the reasons that follow, the Court finds that Trooper Rosand had probable cause or reasonable suspicion to effect a lawful vehicle stop of the Defendant's vehicle on the night in question. Further, the Court finds that the Defendant's statements to Trooper Rosand were knowingly, voluntarily and intelligently made beyond a reasonable doubt.
Legal Analysis
At a suppression hearing, the Defendant bears the ultimate burden of proving, by a preponderance of the credible evidence, that the challenged evidence should not be used against him. See, People v. Barrios, 28 NY2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709 (1971); People v. Thomas, 291 AD2d 462, 738 N.Y.S.2d 357 (2d Dept. 2002). However, the People bear the ultimate burden of going forward to establish the legality of the police conduct in the first instance. See, People v. Hernandez, 40 AD3d 777, 836 N.Y.S.2d 219 (2d Dept. 2007).
At a Dunaway hearing, the People bear the burden of establishing by a fair preponderance of the evidence that the Defendant's arrest was lawful. See, Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979). In the context of a suppression hearing based on a vehicle stop, the People carry a less onerous burden than their burden of proof at trial. See, People v Saylor, 166 AD2d 899, 560 N.Y.S.2d 560 (4th Dept. 1990) [Court held that issue at suppression hearing was not whether the defendant was speeding but whether the police officer had reasonable suspicion to believe defendant was speeding]; People v. Robinson, 97 NY2d 341, 354, 741 N.Y.S.2d 147, 155, 767 N.E.2d 638 (2001) ["the decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic infraction has occurred"]; People v. Guthrie, 25 NY3d 130, 133, 8 N.Y.S.2d 237, 240, 30 N.E.3d 880 (2015).
No legal analysis of a police-citizen encounter would be complete without a reference to and consideration of People v. DeBour, 40 NY2d 210, 352 N.E.2d 562, 386 N.Y.S.2d 375 (1976). In DeBour, the Court of Appeals set forth a graduated four level test by which police-citizen encounters are to analyzed. Specifically, a level one encounter permits the police to approach a citizen and request information if the police have an objective, credible reason not necessarily indicative of criminal activity. A level two encounter permits the police to conduct a common law right of inquiry (a more intrusive inquiry than permitted under Level I) where the police have a founded suspicion that criminal activity is afoot. A level three encounter permits the police to detain and even conduct a frisk for weapons where the police have a reasonable suspicion that a crime has been, is being or is about to be committed. A level four encounter permits the police to arrest a person where the police have probable cause to believe that the person committed a crime. See also, People v. Moore, 6 NY3d 496, 814 N.Y.S.2d 567, 847 N.E.2d 1141 (2006); People v. McIntosh, 96 NY2d 521, 730 N.Y.S.2d 265, 755 N.E.2d 329 (2001).
The U.S. Supreme Court has made recent relevant rulings on the validity of police stops based on anonymous tips. See, Florida v. J.L., 529 U.S. 266, 268, 120 S. Ct. 1375, 1377, 146 L. Ed.2d 254 (2000) [Supreme Court held that an anonymous tip that an individual had a gun, without more, was insufficient to justify a police stop and frisk of the individual]. The J.L. Court held that "[t]he reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." 529 U.S. at 271-72, 120 S. Ct. at 1379 (citations mitted). In People v. Moore, 6 NY3d 496, the Court of Appeals held, in accord with the J.L. Court, that "[a]n anonymous tip cannot provide reasonable suspicion to justify a seizure, except where the tip contains predictive information—such as information suggestive of criminal behavior—so that the police can test the reliability of the tip" (citations omitted); People v. William II, 98 NY2d 93, 745 N.Y.S.2d 792, 772 N.E.2d 1150 (2002).
However, in Navarette v. California, __ U.S. __, __, 134 S. Ct. 1683, 1686, 188 L. Ed.2d 680 (2014), the U.S. Supreme Court upheld a traffic stop based on an anonymous 911 caller who stated that a truck matching a description ran her off the road. The Court found that based on the totality of the circumstances, the officer had a reasonable suspicion that the driver was intoxicated.
In People v. DiFalco, 80 NY2d 693, 697 n.1, 594 N.Y.S.2d 679, 681 n.1, 610 N.E.2d 352 (1993) (citation omitted), the Court of Appeals stated that "[t]his Court, as a matter of State constitutional law, adheres to the Aguilar/Spinelli test and has expressly rejected the less protective 'totality of the circumstances' standard which the United States Supreme Court adopted in Illinois v. Gates in lieu of Aguilar/Spinelli"; see People v. Edwards, 95 NY2d 486, 495 n.5, 719 N.Y.S.2d 202, 207 n.5, 741 N.E.2d 876 (2000).
The Aguilar/Spinelli test provides that "before probable cause based on hearsay is found it must appear . . . that the informant has some basis of knowledge for the information he transmitted to the police and that the information is reliable." People v. Johnson, 66 NY2d 398, 402-03, 497 N.Y.S.2d 618, 621, 488 N.E.2d 439 (1985) (citations omitted). --------
However, in People v. Wright, 98 NY2d 657, 746, N.Y.S.2d 273, 773 N.E.2d 1011 (2002), the Court of Appeals held that an anonymous tip of reckless driving is irrelevant in light of Troopers own observations of traffic infraction; see also, People v. Pealer, 80 AD3d 1504, 933 N.Y.S.2d 473 (4th Dept. 2011), leave to appeal granted, 18 NY3d 961, 944 N.Y.S.2d 489, 967 N.E.2d 714 (2012) (Court held that anonymous tip of erratic driving corroborated by Troopers own observations of same); People v. Twoguns, 108 AD3d 1091, 1092-93 (4th Dept. 2013) [Court held that police had probable cause to stop the defendant's vehicle based on an anonymous 911 caller who described the defendant's vehicle and plate number and whose vehicle was followed and observed by police committing multiple vehicle and traffic violations, including crossing over the center line].
In People v. Argyris, 24 NY3d 1138, 3 N.Y.S.3d 711, 27 N.E.3d 425 (2014), the Court of Appeals sidestepped the issue of whether it would abandon the Aguilar/Spinelli test in favor of the "totality of the circumstances test." Interestingly, in Argyris the Court found that the police had reasonable suspicion to stop defendants' vehicle based on the contents of a 911 call from an anonymous individual and the confirmatory observations of the police. Id. At 1140-1141, 3 N.Y.S.3d at 712 (citations omitted).
It is well settled law that the decision to stop an automobile is objectively reasonable when the police officer has probable cause to believe that a violation of the vehicle and traffic law occurred. See, People v. John, 119 AD3d 709 (2d Dept. 2014); People v. Miller, 57 AD3d 568, 570 (2d Dept. 2008).
As stated by the Court of Appeals, probable cause "does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place." Rather, "[a] police officer who can articulate credible facts establishing reasonable cause to believe that someone has violated a law has established a reasonable basis to effectuate a [traffic] stop." People v. Guthrie, 25 NY3d 130, 133-34 (2015) (citation omitted).
Conclusion
Turning to the case at bar, the Prosecution argues, in the main, that Trooper Rosand's vehicle stop of the Defendant was lawful and justified because it was not predicated solely upon the information given to him by an anonymous civilian tipster, but rather that information, together with his personal observation of the Defendant committing multiple vehicle and traffic violations, justified the stop, and that, therefore, the Aguilar/Spinelli test is inapplicable (People's Memo at pp. 3-6). The Defendant argues, in the main, that any information obtained from the anonymous civilian tipster was insufficient to satisfy the two-pronged test under Aguilar/Spinelli because he failed to provide Trooper Rosand with any information demonstrating the basis for his knowledge that the Defendant was operating his motor vehicle in an intoxicated state and that the civilian tipster himself was reliable (Defendant's Memo at p. 11). Specifically, the Defendant argues that Trooper Rosand never testified that the anonymous civilian tipster told him that he personally observed the Defendant's vehicle "switching lanes, swerving, driving erratically, or driving off the road to establish the basis for the suggestion that the driver was under the influence." (Defendant's Memo at p. 12).
Contrary to the Defendant's contention, the undisputed testimony from Trooper Rosand was that his only response to receiving the information from the unidentified civilian tipster regarding the Defendant was to follow him. Trooper Rosand testified unequivocally that he did not stop the Defendant until after he personally observed him commit multiple vehicle and traffic violations. Since Trooper Rosand personally observed the Defendant commit multiple vehicle and traffic violations, he was justified in stopping the Defendant's vehicle. See, People v. John, 119 AD3d 709 (2d Dept. 2014); People v. Miller, 57 AD3d 568, 570 (2d Dept. 2008). The anonymous tip from the civilian driver who told Trooper Rosand that Defendant may be driving drunk became irrelevant after Trooper Rosand followed the Defendant and personally observed him commit multiple vehicle and traffic violations. See, People v. Wright, 98 NY2d 657, supra; People v. Pealer, 89 AD3d 1504, supra.
The Defendant cites People v. Proper, 2016 NY Slip Op 51111(U) (Justice Ct. Town of Webster, Monroe County) for the apparent proposition that in our case, as in the Proper case, the unidentified civilian tipster failed to satisfy the basis of knowledge and/or veracity prongs of the Aguilar/Spinelli test. In this Court's view, the Proper case is in opposite to the facts of our case. In Proper, unlike our case, after receiving an anonymous 911 call that a drunk driver was operating a certain vehicle, the police officer located the vehicle and immediately stopped it without ever attempting to personally observe the vehicle in order to corroborate the contents of the 911 call. In our case, Trooper Rosand used the information provided to him by the anonymous civilian tipster to locate the Defendant's vehicle and then he followed it after which he personally observed the Defendant commit multiple vehicle and traffic violations before he effected a traffic stop of his vehicle. See, People v. Argyris, 24 NY3d at 1140-41 (Court of Appeals held that police had reasonable suspicion to stop defendant's vehicle based on content of an anonymous 911 call and based on confirmatory observations of police).
The People presented sufficient evidence to satisfy their burden that Trooper Rosand had probable cause or reasonable suspicion to believe that the Defendant committed a violation of the vehicle and traffic law on the night in question.
Huntley hearing
The Court declines the Defendant's request to suppress his statements to Trooper Rosand because the People allegedly put in no evidence regarding those statements (Defendant's Memo p. 2, footnote 1). To the contrary, any statements made by the Defendant prior to his arrest were not the product of a custodial interrogation, but the product of a noncustodial investigatory inquiry which does not implicate Miranda v. Arizona, 384 U.S. 436 (1966). See, People v. Mason, 157 AD2d 859, 550 N.Y.S.2d 432 (2d Dept. 1990); People v. Brown, 104 AD2d 696, 480 N.Y.S.2d 578 (3d Dept. 1984) [Court held that Miranda warnings are not necessary in a DWI traffic stop].
The Court finds that any statements made by the Defendant after he received his Miranda warnings occurred after he knowingly and intelligently waived his Miranda rights beyond a reasonable doubt. See, People v. Huntley, 15 NY2d 72 (1965); People v. Rosa, 65 NY2d 380 (1985); see also, Criminal Procedure Law §710.20.
Any other arguments raised by the parties and not specifically addressed in this Decision and Order have been considered and either rejected or deemed moot in light of the Court's ruling.
Based on the foregoing, it is
ORDERED, that the Defendant's application to dismiss the charges and to suppress the Defendant's statements is denied;
ORDERED, that the parties are directed to appear in Court on October 17, 2016 at 9:00 a.m. for jury selection.
This constitutes the Decision and Order of the Court. DATED: September 30, 2016
Peekskill, New York
Enter,
______________________________
Honorable Reginald J. Johnson
City Court Judge