The defendant is charged by this Indictment with two (2) counts of Feloniously Driving While Intoxicated, Vehicle and Traffic Law § 1192(2), 1193(1)(c)(i) and 1192(3), 1193(1)(c)(i). The defendant moves to suppress the statements allegedly made by him and the evidence obtained pursuant to Section 710.20 of the Criminal Procedure Law. A hearing was conducted pursuant to People v. Huntley, 15 NY2d 72 (1965) and People v. Ingle, 36 NY2d 413 (1975). Officers Mary Ellen Sawicki and Joseph Gramaglia of the City of Buffalo, New York Police Department testified at the hearing.

The credible testimony at the hearing revealed that on June 15, 2006 at approximately 4:30 a.m., Officer Gramaglia was in uniform, on routine patrol driving a marked police car. As he traveled north on Niagara Street approaching Virginia Street in the City of Buffalo, he observed the defendant's car in the Midas Muffler parking lot on the east side of Niagara Street. The defendant's car was not moving and had its lights on. Officer Gramaglia was aware of no reports of any criminal activity at that location and did not personally observe any Vehicle and Traffic violations. However, his suspicions were aroused because he had investigated criminal activity there in the past and the location was generally in a high crime area. Officer Gramaglia made a right turn into the parking lot to investigate and as he entered, the defendant was exiting [*2]in his car allowing Officer Gramaglia a momentary glance at the defendant's face through their car windows. Officer Gramaglia believed the defendant was under the influence of alcohol because he had a glazed-over look on his face that Officer Gramaglia had seen many times before. Officer Gramaglia also believed the defendant looked like he was not coherent. The defendant then turned left onto Niagara Street. Officer Gramaglia immediately made a u-turn in the parking lot and followed the defendant's car. He activated his overhead lights and stopped the defendant's car without observing any criminal activity or Vehicle and Traffic Law violations. After the stop, Officer Gramaglia made observations concerning the defendant's condition and the defendant then made the statements contained in the Notice served upon him pursuant to § 710.30 of the Criminal Procedure Law.

The defendant contends that the car stop was unlawful because Officer Gramaglia did not have reasonable suspicion to interfere with the defendant's liberty in stopping his moving car. The People contend that the totality of the circumstances rose to the level of reasonable suspicion and, therefore, validated the stop and all the evidence that flowed from it.

In order to stop a moving car, a police officer must have reasonable suspicion that a crime has been or is about to be committed or observe a Vehicle and Traffic Law violation, People v. May, 81 NY2d 725 (1992) and Ingle, supra. A hunch, mere whim or caprice is an insufficient basis upon which to interfere with the liberty of a moving motorist. The defendant did not commit any crime prior to the stop and had not violated any Vehicle and Traffic Law section in Officer Gramaglia's presence. No criminal activity had been reported at the parking lot and although Officer Gramaglia said he investigated criminal activity in that neighborhood, he was not specific as to its recency or the underlying facts. Furthermore, there was no testimony as to any furtive gestures by the defendant and no testimony as to long he had been in the parking lot prior to being stopped. Under the totality of the circumstances, notwithstanding his experience and percipience, Officer Gramaglia's ability to determine whether or not the defendant was under the influence of alcohol in a momentary glance while both parties are moving in opposite directions through a car window under poor lighting conditions is not persuasive, May, supra, People v. Spicer, 105 AD2d 1100 (4th Dept. 1984) and People v. Issac, 7 Misc 3d 1004A (Sup. Ct., Queens Cty. 2005). Officer Gramaglia only had equivocal circumstances from which innocent activity could be inferred just as easily as criminal activity. Such observations are insufficient for a car stop.

The statements the defendant allegedly made flow directly from the unlawful car stop and, therefore, are fruit of the poisonous tree, Wong Sun v. United States, 371 U.S. 471 (1963) and People v. Oramus, 25 NY2d 825 (1969).

Accordingly, the defendant's motion to suppress the statements allegedly made by him and the evidence obtained is GRANTED.

This decision constitutes the Order of this Court.

DATED:Buffalo, New York

April, 2007



RUSSELL P. BUSCAGLIA

Supreme Court Justice [*3]