Opinion
Docket No. CR-016906-23QN
07-12-2024
The People of the State of New York v. Lorraine Simmons, Defendant.
For the People: Olawasegun Isaac Omotayo, Assistant District Attorney Edward White, Assistant District Attorney For the Defendant: Candace Graff, Of Counsel Risa Procton, Of Counsel
Unpublished Opinion
For the People:
Olawasegun Isaac Omotayo, Assistant District Attorney
Edward White, Assistant District Attorney
For the Defendant:
Candace Graff, Of Counsel
Risa Procton, Of Counsel
Vidya Pappachan, J.C.C
The Defendant, Lorraine Simmons, currently stands charged with violations of VTL §§ 1192.2-a, 1192.2, 1192.3, 1192.1 and 509.1. At the Defendant's arraignment on June 13, 2023, the People served and filed a two-part statement notice pursuant to CPL § 710.30[1][a] of statements alleged to have been made by the Defendant, both at the scene of the incident and en-route to the 112th precinct. The Defendant also took a breathalyzer test following her arrest which resulted in a Blood Alcohol Content (BAC) result of.197.
On April 15, 2024, prior to the commencement of hearings, the People amended their CPL § 710.30[1][a] statement notice as it related to an alleged statement by the Defendant to PO Cunha at the scene of the incident: the SW Corner of Rockaway Beach Boulevard and Beach 88th street. The People conceded that a portion of the noticed statement was never made by the Defendant and now seek to introduce at trial, only the statement "I put it in gear."
The Defendant further asserts that a portion of the second statement on the People's CPL § 710.30[1][a] statement notice, which was alleged to have been made en-route to the 112th precinct was also not made by the Defendant at the indicated time and location. Accordingly, the Defendant moves to preclude the statements "I was at my family celebration of life ceremony. Got in the car, parked it, yes, I'm inebriated. I'll admit to that. I'm probably four, five, six times over the limit. I'm probably four, five, six times over the limit" as improper and failing to conform to the proper notice requirements of CPL § 710.30.
On April 15th and April 18th 2024, the Court conducted combined Huntley/ Johnson/Dunaway hearings regarding the (1) admissibility of properly noticed statements, (2) a determination as to probable cause for the stop of the Defendant's vehicle and subsequent arrest and (3) a determination of the admissibility of the breathalyzer test pursuant to VTL § 1194.
The People presented two witnesses at the hearing, Police Officer (PO) Andre Cunha and PO Osmin Orellana, and entered the body-worn camera (BWC) footage of PO Orellana and the IDTU video taken at the 112th precinct into evidence. The Defendant did not present any evidence but entered the BWC footage of PO Cunha into evidence. The Court has reviewed the evidence adduced at the hearing and considered the arguments of both parties in issuing its decision.
The Court credits the testimony of Officers Andre Cunha and Osmin Orellana to the extent noted below and now makes the following finding of fact.
Findings of Fact
Police Officer Andre Cunha and Osmin Orellana have both been employed with the NYPD for approximately five years and are currently assigned to the 100th precinct. Officer Orellana received training in the identification of intoxicated individuals and has been involved in investigations involving two or three intoxicated individuals.
On June 12, 2023, the date of the instant incident, both Officers Cunha and Orellana were working a midnight tour in Rockaway Queens that started from the evening of June 11, 2024, at 11:15 pm and extended to 7:50 am, the following day. Officer Cunha was working with his partner Officer Bradley, while Officer Orellana was working with his partner, Officer Rassbeharry.
At approximately 12:46 am, Officer Cunha and his partner Officer Bradley responded to a 911 call regarding a stolen vehicle. According to PO Cunha, a male 911 caller indicated that there was a blue Ford vehicle that was stolen and had provided officers with a license plate number for the allegedly stolen vehicle. While on the phone with the 911 caller, PO Cunha and his partner canvassed the area of Beach 88th Street and Rockaway Beach Boulevard and found the alleged stolen vehicle. It was parked. PO Cunha stopped his RMP behind the blue Ford vehicle and approached the vehicle with his partner. Within the moments of the officers' approach, the vehicle's ignition was started.
Officer Cunha immediately rushed to open the driver's side door of the vehicle while his partner, PO Bradley, from the passenger's side removed the keys from the ignition and directed the Defendant to exit the vehicle. When she did not, PO Bradley grabbed the Defendant's hands, removed her from the vehicle and placed her in handcuffs.
PO Cunha testified that as he opened the driver's side door of the vehicle, he observed the Defendant who was in the driver's seat to have "watery eyes, bloodshot eyes and a strong odor of alcohol coming from her person" (Hearing Tr, April 15, 2024, p18). PO Cunha concluded that based on these observations, the Defendant was intoxicated. He further testified that during this interaction, the Defendant stated, "I want to put the car in gear." After the Defendant was in custody, PO Cunha made a radio call asking if any other officers had the complainant, the 911 reporter, with them.
Officer Orellana arrived at the scene with his partner after the Defendant had already been placed in handcuffs. He arrived with the complainant; the individual who had allegedly reported the vehicle stolen. PO Orellana could only recall that the complainant was a family member of the Defendant and that she was wearing a "pink, reddish dress at the time" (Id at 42). PO Orellana asked the complainant if the vehicle the Defendant had been operating was her vehicle, to which she answered in the affirmative. He next asked the complainant if the Defendant was the individual who had stolen her vehicle, to which she answered "no" (Id at 43).
Officer Orellana testified that Defendant exhibited "moderate smell of alcohol, bloodshot eyes and swaying" (Id at p41) and concluded that the Defendant was intoxicated. He arrested the Defendant for driving while intoxicated. Once the Defendant was placed under arrest, PO Orellana transported the Defendant to the 112th precinct. PO Orellana testified that while en-route to the 112th precinct, at approximately 1:20 am the Defendant stated in sum and substance, "you probably could smell alcohol" (Id.).
At the 112th precinct, the Defendant submitted to a breathalyzer test, while in the presence of PO Orellana. The breathalyzer test revealed a BAC of.197. The administration of the breathalyzer test was memorialized on the IDTU video entered into evidence.
Conclusion of Law
Stop and Arrest of Defendant
At the outset, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct (People v Berrios, 28 N.Y.2d 361, 367-78 [1971]). Once the People have met this burden, the Defendant bears the burden by a preponderance of the credible evidence of proving any illegality of the police conduct (see id. at 367; Mapp v Ohio, 367 U.S. 643 [1961]; Dunaway v New York, 442 U.S. 200 [1979]; see People v De Bour, 40 N.Y.2d 210, 323 [1976]) . An officer has probable cause to arrest a person for committing an offense when "[it] appear[s] 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" (People v Carrasquillo, 54 N.Y.2d 248, 254 [1981]).
An intrusion under such circumstances must comport with the four-tier analysis articulated in De Bour. De Bour's first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" (id.). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may affect a full-blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime (id. at 223).
In laying out this four-tiered analysis, the Court of Appeals recognized "that police-citizen encounters are dynamic situations during which the degree of belief possessed at the point of inception may blossom by virtue of responses or other matters which authorize and indeed require additional action as the scenario unfolds" (De Bour, 40 N.Y.2d at 225; see People v Hollman, 79 N.Y.2d 181, 191 [1992]). As it applies to roadside investigations, it has been repeatedly emphasized that "the expectations of privacy of a passenger of an automobile fall considerably below the expectations of privacy of an occupant of a dwelling" (Cardwell v Lewis, 417 U.S. 583, 590 [1974]; People v Kreichman, 37 N.Y.2d 693, 698 [1975]). Officers are given broader discretion in their actions based on the potential risk that is posed to them (People v Gonzalez, 298 A.D.2d 133, 747 [2002]). An officer may approach a parked car for an objective, credible reason, not necessarily indicative or criminality (People v Harrison, 57 N.Y.2d 470, 475-476 [1982]; People v Karagoz, 143 A.D.3d 912, 913 [2d Dept. 2016]).
Here, the Defendant concedes that PO Cunha and his partner had at least a level-two right to a common law inquiry and a right to approach the Defendant's vehicle. Accordingly, while it is true that PO Cunha had nearly no details about the 911 caller, it was nevertheless reasonable for officers to conduct a preliminary investigation that permitted them to approach a vehicle that matched the make and license plate of an allegedly stolen vehicle.
PO Cunha testified that as he and his partner approached the vehicle, it appeared that the driver of the vehicle started the car, which prompted PO Cunha to quickly grasp for the vehicle' door and open it. BWC footage from PO Cunha depicts the Defendant to appear startled and remove her hands from the steering wheel. Within seconds, his partner, PO Bradley reached into the car and removed the keys from the ignition and the Defendant from the vehicle. At issue before the Court is whether this police action was justified under the framework of DeBour. It is without question that PO Bradley's action in forcibly detaining the Defendant amounted to a seizure of the Defendant.
Debour highlights that an officer may forcibly stop and detain a person when the officer has reasonable suspicion that the individual has been involved in criminal activity, a level-three intrusion (supra Debour at 223). Where the encounter is in the context of roadside investigations, as is the case here, officers are given broader discretion in their actions because of the potential risk that is posed to them (People v Robinson, 74 N.Y.2d 773, 775 [1989] [ People v Mathis, 136 A.D.2d 746 [2d Dept 1988]) . This distinction is integral in the Court's evaluation of PO Cunha and his partner's actions in the instant circumstances. Courts have consistently held that opening the door of a car is permissible and is both minimally intrusive and a reasonable safety precaution (People v David L., 56 N.Y.2d 698 451 [1982] [opening of the door was a minimal intrusion into the defendant's expectations of privacy and was justified under the necessity of securing the officer's safety]; see supra Gonzalez). Here, while the officers Cunha and Bradley were investigating a possible stolen vehicle and approaching the potentially stolen vehicle, they observed the driver transition from park and turn on the car. It was reasonable for PO Cunha and his partner to think that the driver of a stolen vehicle might be about to drive away and flee. The circumstances taken together create a justified "founded suspicion that a criminal activity was afoot" (supra DeBour at 572). PO Cunha was justified in opening the driver's side door as a "self-protective intrusion" to ensure the Defendant would not attempt to drive away (Id. Gonzalez; supra David L). The act of turning on the ignition to a parked car when uniformed officers are visibly approaching leads to a reasonable inference that the car was about to move. PO Cunha and PO Bradley were on foot and exposed to a heightened risk. In view of the totality of the circumstances, PO Bradley was permitted to forcibly seize the Defendant, at the very least, to obtain an explanation (supra DeBour at 571; People v Cantor, 36 N.Y.2d 106 [1975]) .
It is worth noting that PO Cunha and PO Bradley actions were not based on a "(m)ere 'hunch' or 'gut reaction'" (People v Sobotker, 43 N.Y.2d 559, 564 [1978]). The situation at hand is unlike the circumstances in People v Noble, 154 A.D.3d 883 [2d Dept 2017] where the Court found that the officers' reaching into a car and turning off the ignition constituted an unjustified forcible seizure. The circumstances dictating the officer's approach of the vehicle in Noble versus the instant situation are distinctly different. In Noble, officers observed a vehicle that was simply parked on the side of the road with the engine and headlights on, but taillights turned off. Here, officers Cunha and Bradley approached the Defendant's vehicle in connection to an investigation of a stolen vehicle where they had been provided with specific details about the vehicle and had located the alleged vehicle. It was incumbent upon them to investigate and the justified level-two intrusion, was escalated by Defendant's suspect actions. Accordingly, the officers' actions were constitutionally permissible.
PO Cunha testified that upon opening the vehicle's door he observed the Defendant had bloodshot, watery eyes and was able to smell alcohol emanating from the Defendant's person. An individual that is intoxicated can exhibit an array of symptoms that are indicative of intoxication, such as "slurred speech and unsteadiness" (People v Gullo, 51 Misc.3d 150 [A][App Term, 2d Dept 2016]), rambling (People v Crane, 156 A.D.2d 704 [2d Dept 1989]), erratic driving (People v Hillman, 71 Misc.3d 127 [A] [App Term, 2d Dept 2021]), roadside sobriety tests, and of course, a person's own admission. Ultimately the threshold for determining whether an individual is intoxicated rests upon an evaluation of the totality of the circumstances and "whether it is more probable than not that a person is actually impaired" (People v Vandover, 20 N.Y.3d 235, 239 [2012] ; see supra Carrasquillo). Here, a review of the BWC of PO Cunha corroborates his testimony to the extent that the Court can observe the Defendant to exhibit bloodshot, watery eyes.
Officer's Cunha's observations provided probable cause to arrest the Defendant for operating a motor vehicle while in an intoxicated state.
Accuracy of People's Statement Notice
In reference to the Defendant's alleged statements, the People are required to provide proper notice of any and all statements they intend to introduce at trial during their case-in-chief. Prior to the commencement of the hearing, the People amended their statement notice as it pertained to the Defendant's statement at the scene of the arrest.
However, the parties dispute whether proper notice was provided as to the statements made by the Defendant en-route to the precinct. Defendant contends that the statement "I'm probably four, five, six times over the limit" as noted in the second portion of the People's CPL § 710.30[1][a] statement notice which was alleged to have been made to PO Orellana at 1:22 am inside an RMP en-route to the 112th precinct is inaccurate. The Defendant asserts that this specific statement was not made at the noted at the time and location denoted on the People's statement notice and therefore must be precluded a failure to conform to the notice requirement under CPL 710.30.
It is well established that sufficiency of any noticed statement pursuant to CPL § 710.30 "need not be a verbatim account of the defendant's oral statement [sic]. Rather, the People need only give notice of the sum and substance of the statement so that the defendant is made aware of it and receives an adequate opportunity to timely move to suppress it" (People v Reid, 215 A.D.2d 507 [1995]).
A meticulous review of the PO Orellana's BWC footage clearly depicts that the Defendant made a number of statements while en-route to the precinct which were summarized in the People statement notice. However, the specific statement "I was at my family celebration of life ceremony..got in the car, parked it, yes, I'm inebriated. I'll admit to that. I'm probably four, five, six times over the limit" is distinctly made at a later time, only upon the Defendant's arrival at the precinct at 1:29, nearly seven minutes after the time indicated on the People's statement notice. While a seven-minute time difference may appear minimal, here, the specific statement is made after the arrival at the precinct, when the Defendant appears to hesitate for several minutes while she exits the RMP and to enter the precinct. Thus, the context in which the statement is made is distinctly different than the other statements made while "en-route" to the precinct. Moreso, PO Orellana testimony at the hearing does not reflect that the Defendant ever made this statement. He summarized a litany of statements made by the Defendant during the drive to the precinct, by simply testifying that the Defendant stated: "you probably could smell alcohol."
This discrepancy in statements as alleged in the People's 710.30[1][a] notice and the testimony adduced at the hearing extends beyond what may be categorized as "sum and substance". The People's statement notice was sufficient on its face; however, the testimony reflects otherwise. The difference in statements as memorialized on the People's CPL § 710.30[1][a] versus what PO Orellana testified to is significant and "so egregious that [it may] hamper a defendant's investigation, formulation of strategy" (People v Falkoff, 819 N.Y.S.2d 850 [SCt Kings Co 2006]). Indeed, here, the accuracy as to the time frame is both particularly relevant and significant for purposes of establishing evidence of intoxication and/or impairment under VTL §§ 1192 (Lopez at 428; see People v Miller, 154 A.D.2d 717 [2d Dept 1989]; People v Utria, 165 Misc.2d 54 [Queens Co 1995]).
Thus, the portion of the noticed statement, "I was at my family celebration of life ceremony..got in the car, parked it, yes, I'm inebriated. I'll admit to that. I'm probably four, five, six times over the limit. I'm probably four, five, six times over the limit" is not admissible and the Defendant's motion is granted to this extent.
Huntley Hearing
At a Huntley hearing, the People bear the burden of proving the voluntariness of each statement made by Defendant to law enforcement beyond a reasonable doubt (People v Huntley, 15 N.Y.2d 72, 78 [1965]). If the People have satisfied their obligation, the burden is on the defendant to show otherwise (People v Vidal, 44 A.D.3d 802, 802 [2nd Dept 2007]). In determining the voluntariness or involuntariness of the Defendant's statements, the Court considers whether the statements are coerced or obtained by threats, improper conduct, undue pressure, or trickery (Brown v Mississippi, 297 U.S. 278; CPL 60.45[2][a]).
Where statements are not voluntary, Miranda safeguards are triggered whenever there is custodial interrogation. In deciding whether a Defendant is in custody, the Court evaluates whether a reasonable person, innocent of any crime, would have thought she was free to leave had she been in the Defendant's position (People v Harris, 48 N.Y.2d 208, 2015 [1979]; People v Yukl, 25 N.Y.2d 585 [1969]). In evaluating whether a Defendant has been subject to interrogation, the Court looks to 'words' or 'actions' on the part of the police that are likely to elicit an incriminating response (People v Wortham, 37 N.Y.3d 407, 413 [2021], quoting People v Ferro, 63 N.Y.2d 316 [1984]). The People may not use statements that are the product of custodial interrogation unless it demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination (People v Paulman, 5 N.Y.3d 122 [2005]; Miranda v Arizona, 384 U.S. 436, 444-45 [1966]).
Defendant argues that the statement at issue should be suppressed for several reasons: first, because the statement testified to did not comport in form and substance with the noticed statement and second, because the People failed to meet their burden in proving beyond a reasonable doubt that the statement was voluntary.
Here, Defendant's statement at the scene was voluntary and not the product of custodial interrogation, as normal roadside investigatory questioning is permitted (see Berkemer v McCarty. 468 us 420 [1984] [US Supreme Court held that stopping auto and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment, but that a VTL stop does not render a defendant in custody for purposes of the Miranda warnings]). Defendant's statement en-route to the 112th precinct was also wholly spontaneous and without any prompting, thus, admissible in evidence (See People v Rivers, 56 N.Y.2d 476, 480 [1982]; People v Maerling, 46 N.Y.2d 288, 302 [1978] [holding that statements that are not the result of "inducement, provocation, encouragement or acquiescence" are admissible in evidence]). BWC footage from Officer Orellana clearly depicts that he did not engage in questioning. Instead, the Defendant, of her own volition, made a litany of statements (see People v Ferro, 63 N.Y.2d 316 [1984]; People v Arriaga, 309 A.D.2d 544 [1st Dept 2003]; People v Smith, 298 A.D.2d 182 [1st Dept 2002]).
Accordingly, all properly noticed statements made by the Defendant are admissible.
Breathalyzer Test
Lastly, as relates to admissibility of the breathalyzer test, the People bear the burden to establish a defendant's consented to a breathalyzer test through "clear and positive evidence" (People v Capraella, 165 Misc.2d 639, 644 [Crim Ct, Queens Cty 1995]). Here, the IDTU video depicts that in the presence of PO Orellana, the Defendant expressly and voluntary consented to taking a breathalyzer test. Thus, the requisite statutory elements if VTL § 1194[2][a] have been met (see generally CPL § 710.20[5]; People v Atkins, 85 N.Y.2d 1007, 1008-1009 [1995]; People v Odum, 31 N.Y.3d 344, 346 [2018]) evidence of the breathalyzer test is admissible at trial.
The foregoing constitutes the opinion, decision, and order of the Court.