The defendant was charged with Boating While Intoxicated,

Navigation Law Section 49-a(2)(d), Operating a Power Boat with a BAC over .08 percent,

Navigation Law Section 49-a(2)(b) and Expired Flare Kit, Navigation Law Section 40-7 on May

20, 2012. The defendant was issued a "Simplified Information/Complaint" for each charge. The

defendant appeared in court with his attorney for arraignment. The matter was set down for

argument of motions, which resulted in the granting of Probable Cause and Huntley Hearings.

At those hearings, the People presented one witness, namely Deputy Sheriff John Whitehair.

The deputy testified that on May 20, 2012 he was working for the Marine Unit of

Monroe County Sheriff's Department. At approximately 2:45 P.M. he was operating his patrol

boat westbound on Lake Ontario off shore from the City of Rochester, New York. While so

doing he received a 911 dispatch wherein he was advised that an unnamed retired sheriff's [*2]

deputy had observed people that appeared to be intoxicated get on board a large boat near the

mouth of the Genesee River. The boat was docked in the vicinity of an establishment known as

O'Loughlin's Bar. It was later observed by said retired sheriff's deputy to being operated in a

northbound direction on the Genesee River toward Lake Ontario. Deputy Whitehair testified that

he then proceeded easterly on Lake Ontario toward the outlet of the Genesee River.He

indicated that earlier that day he had been on patrol in the Genesee River and had observed a

large vessel that had the name "Capital Gains" on the stern of said boat.

As he passed the Genesee River in response to the dispatch he observed the same large

boat on the lake heading east toward Irondequoit Bay.^[FN1] The deputy continued to follow the boat

as it proceeded easterly about a mile off shore. Eventually the boat passed the entrance to

Irondequoit Bay offshore from the Town of Webster, but then proceed in a southwesterly

direction toward the entrance to the bay. The deputy indicated that he observed a

white male wearing a dark shirt with the word "Staff" written on the back. He observed other

individuals near the stern of the vessel.

At that time he engaged his emergency lights and his siren in an attempt to stop and board

said boat. The deputy indicated that subsequent to engaging the emergency lights and siren he

observed the pilot of the boat leave the wheel while the boat was still in operation. The pilot then

stepped toward the rear of said boat. The boat continued in motion at about fifteen to twenty

miles per hour, without anyone operating same, until another individual took control of the wheel

and brought the boat to a stop. The deputy drove his vessel toward the port side of the vessel [*3]

in question, where he tied off his boat.The deputy went aboard said boat upon being given

permission to do so. That permission was granted by an individual who identified himself as the

boat's owner.

Upon going aboard the deputy observed the operator of the boat to have bloodshot eyes,

a pale face and slurred speech. That individual produced a New York State photo driver

license, which identified him as the said Joseph M. Anello, the defendant herein. Deputy

Whitehair requested an opportunity to inspect the vessel's safety equipment. All said equipment

was in order except for an expired flare kit, for which he was issued the previously referred to

simplified information.

The deputy engaged the defendant in conversation, wherein he admitted to drinking

four to five beers while at the bar and on the boat. He also admitted to operating the boat.

During that conversation the deputy testified to having observed a strong order of an alcoholic

beverage coming from the defendant. The deputy also testified to observing the defendant

swaying while was walking about the boat. The defendant agreed to engage in various field

sobriety tests. Whereupon the defendant was transported via the patrol boat to a parking area on

the Irondequoit side of the bay at 4999 Culver Road. The deputy testified to administering the

alphabet test, the counting test, the walk and turn test and the finger to nose test. Although the

defendant was able to successfully complete the counting test, he reportedly failed the remaining

field sobriety tests. There was also a positive reading in the alcosensor test. Upon completion of

said tests the defendant was arrested for boating while intoxicated. The defendant was then read

his Miranda warnings and he subsequently agreed to speak to the officer.

Issues Presented. [*4]

Was the deputy justified in relying on the anonymous tip under the "fellow officer rule"?

Was the investigative stop of the defendant's boat justified?

Did the officer have probable cause to arrest the defendant?

Should the defendant's statements to the deputy be suppressed?

Legal Analysis.

I. Anonymous tip/Fellow Officer. The Monroe County Sheriff's Deputy was on routine

patrol some distance west of the location of the anonymous tipster, who reportedly observed a

number of what appeared to him as intoxicated individuals board a large boat, later identified as

the said "Capital Gains". That tip was conferred on Deputy Whitehair via the 911 dispatcher.

The tipster was alleged to have been a retired Monroe County Sheriff's Deputy. That retired

deputy was not produced at the probable cause hearing. Nor was there any further information

provided as to the identity of that individual.

"The fellow officer rule has been stated as follows: the arresting officer acts

with probable cause when he arrests on the direction of a fellow officer who

has probable cause or without such direction on the basis of information

received from a fellow officer who testifies at the suppression hearing concerning

how he obtained his knowledge, which information itself or together with that

known by the arresting officer establishes probable cause'" [People v. Gittens,

(2nd Dept. 1995) 211 AD2d 242,244, 627 N.Y.S.2d 435,438.]

By implication the People contend that the tip was reliable even though it was from an

anonymous source, because it came from a retired sheriff's deputy. In this case the tip did not

even come directly from the tipster to the arresting officer, but was relayed through the 911

operator. "An anonymous tip cannot provide reasonable suspicion to justify a seizure, except

where that tip contains predictive information - - so that the police can test the reliability of the [*5]

tip." [People v. Moore, 6 NY 496,499, 814 N.Y.S.2d 567,569 (2006)]. In any event, when the

deputy navigated his patrol boat eastbound and initially met up with the defendant's vessel, there

was no evidence of any wrongdoing. Thus the tip could not be considered a reliable anonymous

tip. Nor could it be considered reliable as coming from a fellow officer.

II. Investigative Stop. Despite the lack of reliability of the anonymous tip and the

inability to rely on the observation of a fellow officer, Deputy Whitehair attempted to stop

the defendant's boat by engaging both his emergency lights and siren.In fact,

"... the Court of Appeals has made it abundantly clear' (Sobotker, 43 NY2d

at 563) that police stops of automobiles in this State are legal only pursuant to

routine, nonpretextual traffic checks to enforce traffic regulations or when

there exists at least a reasonable suspicion that the driver or occupants of

the vehicle have committed, are committing, or are about to commit a crime.'"

[People v. Washburn, 309 AD2d 1270,1271, 765 N.Y.S.2d 76,77

(4th Dept. 20003)].^[FN2]

It is certain that the rules for stopping a vehicle would also apply to stopping a vessel.Had the

story ended there the stop might not have been justified. See People v. Minnamon, 25 Misc 3d

1219A; 951 N.Y.S.2d 88, 2012 NY Slip Op. 50744U, wherein the County Court, Falvey, J.,

reversed the judgment of conviction of the trial court and dismissed the conviction of a defendant

boat operator. That decision, among other reasons, was based on the fact that

"The People's witnesses were unable to articulate a vessel or person that was unreasonably endangered by defendant's action. The People's first witness testified that it is illegal to ride on the bows or the gun wale or the transom in New York State. However, Navigation Law Section 45(1)(a) does not so state". "^[FN3]

However, the facts of the case did not end with the immediate stop of the defendant's

vessel at the request of Deputy Whitehair. The testimony of the deputy was that upon the

engagement of his lights and siren the pilot of the boat abandoned his post, while the said boat

continued eastward pilotless at approximate fifteen to twenty miles per hour. That behavior

could certainly have violated Section 45(1)(a) of the Navigation Law which states in pertinent

part

"Every master or operator of a vessel shall at all times navigate the same in a careful and

prudent manner such a way as not to unreasonably interfere with the free use of the navigable waters of the state .... Reckless operation is prohibited. Any person operating a vessel in violation of this subdivision shall be guilty of a misdemeanor ...."

III. Probable Cause to Arrest. The errant boat was brought under control and stopped

by another individual aboard. After stopping and tying up to the subject vessel the deputy was

given permission to board by the boat's owner. Upon boarding, the deputy approached the

defendant and requested and received a driver license as identification. In so doing the deputy

observed various indicia of intoxication, i.e. bloodshot eyes, slurred speech, difficulty in moving

about and swaying. Pursuant to the portion of the alcohol influence report that was entered into [*7]

evidence, the defendant admitted to Deputy Whitehair that he had consumed five to six beers

both at the aforementioned O'Loughin's and while on board the boat. Those observations and

that admission led to the previously described field sobriety tests.

"The terms reasonable cause' and probable cause' are used interchangeably".

(Gerstenzang, Handling The DWI Case in New York, Section 1:18 at 40 [2011-2012 ed]).

Reasonable Cause is defined in C.P.L. Section 70.10(2) as follows:

"'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances whichare 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."

Based on the officer's observations of the defendant on the boat and the performance of the field

sobriety tests performed on shore, the deputy had probable cause to arrest the defendant for

boating while intoxicated.

IV. Huntley Hearing. The evidence at the hearing proved beyond a reasonable doubt

that the statements made by the defendant were voluntary made. The initial statements made

aboard the boat were made to the deputy during the investigatory stage of the stop. The

remaining statements were made after the defendant was properly advised of his Miranda rights.

Conclusion.

The defendant's motion to suppress the fruits of the arrest including the observations of

the defendant due to a lack of probable cause to arrest the defendant is hereby denied. Likewise

the defendant's motion to suppress statements of the defendant made to law enforcement

personnel is also denied.This constitutes the decision and order of this court.

Dated: February 1, 2013 [*8]

Webster, New York

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice