This matter comes on by appeal by the People from the Bench Decision dated May 31, 2002 of Kingston City Court, Hon. James P. Gilpatric, presiding, suppressing the validity of a traffic stop and all evidence obtained therefrom, and dismissing all charges against the above defendant, following suppression hearings held on August 14, 2000 in the City Court.

This Court has been supplied with the Notice of appeal, stipulations and the appellant and respondent's briefs by the Ulster County Court Clerk. This matter is fully submitted.

STATEMENT OF FACTS

At approximately 1:25 in the morning, on March 4, 2000, while on routine patrol, New York State Troopers Klein and Coleman were proceeding west on Washington Avenue in the City of Kingston. Trooper Klein, the driver, stopped at a red light at the intersection of Hurley Avenue and Washington Avenue. The Troopers observed a green pick-up truck approach the intersection from the opposite direction, stop at the red light and turn right onto Hurley Avenue, and thereafter almost immediately coming to a stop, close to the road edge, but in the traveled portion of the street. [*2]

Trooper Klein observed the defendant exit the vehicle and walk towards the rear of the pick-up truck with some difficulty as he was holding onto the body of his vehicle.

Trooper Klein pulled alongside of the vehicle, spoke to the defendant through the trooper's passenger window and asked if he needed assistance. The driver stated that he ran out of gas and was going to put gas from a can into his truck.

Trooper Klein requested that the defendant step onto the side walk for his own safety.

Trooper Klein then parked his police cruiser in front of the truck and exited the vehicle to speak to the defendant.

Upon approaching the defendant, Trooper Klein observed an odor of alcohol from the defendant, in addition to blood shot eyes and slurred speech.

The defendant was instructed to take field sobriety tests which he failed. Defendant was then arrested for violation of V&T 1192(2) and V&T 1192(3).

Trooper Klein drove defendant's truck across the street to a bank parking lot, secured it and transported defendant to the state police barracks.

Defendant was administered a breathalyzer test at the state police barracks. After blowing twice, the defendant's BAC was .018.

THE LAW

The Bench decision dated May 31, 2002 of Hon. James P. Gilpatric suppressed the police stop herein as not within the ambit of the vehicle stops in People v Chilton, 69 NY2d 928 (1987) and People v Ingle, 39 NY2d 413 nor for informational purposes as authorized in People v Debour, 40 NY2d 210 (1976).

The instant appeal deals with police approaching a motor vehicle already stopped in a travel lane of a city street, not the stopping of a moving vehicle as in Chilton, supra or Ingle, supra.

Our courts have consistently recognized the lawful and common law right of the police to inquire. When the police initiate an encounter with a private citizen, the propriety of that encounter must be assessed under the seminal guidelines of People v Debour, 40 NY2d 210 (1976) and People v Hollman, 79 NY2d 181 (1992). See, People v McIntosh, 96 NY2d 521 [*3](2001).

A police officer, in the absence of any concrete indication of criminality, may approach a person on the street in a vehicle for the purpose of requesting information. People v DeBour, 40 NY2d 210, 213 (1976).

"The crucial factor is whether or not the police behavior can be characterized as reasonable which, in terms of accepted standards, requires a balancing of the interests in the police inquiry." People v DeBour, 40 NY2d 210, 217 (1976).

The role of the police in our society is a multifaceted one which includes the control of pedestrian and vehicular traffic and supplying emergency help and assistance. The overriding requirement of reasonableness must prevail. People v DeBour, 40 NY2d 210, 218 (1976).

"DeBour also stands for the proposition that the brevity of the encounter and the absence of harassment or intimidation will be relevant in determining whether a police-initiated encounter is a mere request for information." People v Hollman, 79 NY2d 181, 190 (1992).

"To that end, we emphasize that a request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area."

People v Hollman, 79 NY2d 181, 191 (1992).

FINDING

This Court finds that the New York State Trooper had a valid reason to approach the defendants parked vehicle in the traveled portion of a public highway to offer assistance and to secure the safety of the defendant and his vehicle. The actions of the Troopers in approaching the defendant and making their initial limited inquiry was reasonable and necessarily germain to the police duty to protect the highways and its users. Indeed, to simply ignore and drive past a motorist in apparent difficulty at 1:30 in the morning would have been neglectful police conduct.

Having lawfully approached the defendant and his vehicle, and secured defendant's safety by having him step onto the sidewalk, the Trooper's observations, including an odor of alcohol, bloodshot eyes and slurred speech, along with the defendant's unsteady gait walking toward the rear of his truck on the street, gave him reasonable suspicion to administer field sobriety tests. Defendant's failure to adequately perform the field sobriety tests further gave the Trooper probable cause to arrest him for DWI.

This Court holds that the initial encounter was lawful in its inception and the subsequent conduct of the police was based upon reasonable suspicion and thereafter probable cause to arrest. [*4]

Based upon the foregoing, it is

ORDERED, that the Bench Decision dated May 31, 2002 of the Kingston City Court Judge is herein and hereby reversed, and it is further

ORDERED, that the above captioned matter is reinstated and remanded to the Kingston City Court for trial and any further proceedings that may be necessary.

This shall constitute the Decision and Order of this Court.

DATED: February 6, 2007

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Acting Ulster County Court Judge