[*1]
People v Figueroa
2015 NY Slip Op 50279(U) [46 Misc 3d 1224(A)]
Decided on March 3, 2015
Criminal Court Of The City Of New York, Bronx County
Montano, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 3, 2015
Criminal Court of the City of New York, Bronx County


The People of the State of New York,

against

Efigenio Figueroa, Defendant.




53471/14



Petitioner's counsel

The People - Robert T. Johnson, District Attorney, Bronx County, by Alissa Lelo and Aaron Kaplan, Assistant District Attorneys

Defendant - Bronx Defenders, by Colby Dillon and Ashley Burrell

2011BX011774
Armando Montano, J.

Defendant is charged with the misdemeanors of Driving While Intoxicated (VTL §§ 1192(2), and (3)) and the traffic infraction of Driving While Ability Impaired by Alcohol (VTL § 1192(1)).

By notice of motion dated August 3, 2011, defendant moved to suppress any and all physical evidence seized from defendant, including observations made by the police and/or the results of any chemical test obtained, and any and all statements made by defendantfor which notice was served pursuant to CPL § 710.30. Defendant moved to suppress the foregoing as the tainted fruits of an unlawful seizure.

A combined Mapp/Dunaway/Huntley/Johnson hearing was held before this Court on February 24, 2015. The People called Police Officer ("P.O.") Perez as their sole witness. This Court finds her testimony to be inconsistent and less than credible.
Findings of Fact

P.O. Perez has been employed by the New York City Police Department for the past 13 years. She is currently assigned to the Bronx Task Force. During her tenure as a police officer, she has made over 170 arrests and has participated in approximately 100 additional arrests. Out of the total number of arrests in which P.O. Perez has been involved, approximately 75 to 100 arrests were related to driving while intoxicated. Not only has P.O. Perez been trained as to what signs to look for in order to determine whether an individual is intoxicated, she is also a certified Intox Testing Unit Technician.

P.O. Perez testified that on February 27, 2011 at approximately 6:20 a.m., she and her partner, P.O. Hernandez, were traveling southbound on Provost Avenue in their marked patrol vehicle. Defendant was traveling northbound on Provost Avenue when P.O. Perez observed that his vehicle did not have a front license plate. As they passed each other, P.O. Perez observed from her side-view mirror that defendant's vehicle also lacked a rear license plate. Immediately thereafter, P.O. Perez made a U-turn and followed defendant's vehicle for approximately one block. After the turret lights were activated on the patrol vehicle, defendant pulled his vehicle [*2]over to the side of the roadway. P.O. Perez explained that she stopped defendant's vehicle "to make sure that his vehicle was properly registered or at least going to be registered and properly insured to be allowed on the road." (February 24, 2015 tr. at 22, lines 18-20).

P.O. Perez approached defendant's vehicle from the driver's side with P.O. Hernandez approaching behind her. As she approached defendant's vehicle, P.O. Perez observed a temporary tag affixed to the windshield. Defendant was seated in the driver's seat. There was a female child seated in the back of the vehicle as well as a female adult passenger seated in the front of the vehicle.

P.O. Perez initially testified on direct examination that she observed defendant to have bloodshot watery eyes, slow and slurred speech, and the smell of alcohol on his breath when she first approached defendant's vehicle. P.O. Perez asked defendant to produce his driver's license, vehicle registration, and proof of insurance. After receiving the paperwork for the vehicle and being satisfied that the vehicle was properly insured and registered, P.O. Perez asked defendant where he was going. In response, defendant stated that he was taking the adult female passenger to work. P.O. Perez then asked defendant what he had to drink. Defendant stated, "I stopped drinking at midnight." Thereafter, P.O. Perez deemed defendant to be driving under the influence of alcohol and ordered him to step out of the vehicle, where he was observed to be unsteady on his feet. Defendant was then observed to be unsteady on his feet.

In stark contrast to her testimony on direct examination, P.O. Perez admitted on cross-examination that she never smelled alcohol emanating from either defendant or his vehicle when she first approached. After receipt of all of the relevant paperwork for defendant's vehicle, P.O. Perez determined the temporary tag, the insurance card, and the driver's license to be valid. Despite determining to her satisfaction that the paperwork was valid, P.O. Perez walked back to her patrol vehicle to check the validity of the driver's license. While she was verifying the driver's license, P.O. Hernandez informed P.O. Perez that he thought he smelled alcohol emanating from defendant's vehicle. Only after P.O. Perez walked back to defendant's vehicle did she notice the smell of alcohol. During questioning, P.O. Perez also noticed defendant's slurred speech. Defendant was then asked to step out of the vehicle, where he was observed to be unsteady on his feet.

Defendant was placed under arrest at 6:40 a.m. and taken to the 45th Precinct for the administration of the Intoxilyzer. At approximately 7:50 a.m., P.O. Perez administered the test.
Conclusions of Law

"For a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance." People v. Banks, 85 NY2d 558, 562 (1995), cert denied 516 U.S.868 (1995); see also, People v. May, 52 AD3d 147, 151 (1st Dept. 2008). It is undisputed that P.O. Perez was justified in stopping defendant's vehicle as she had reasonable suspicion to believe that defendant was committing a violation of Vehicle and Traffic Law § 402(1) by failing to display front and rear license plates on his vehicle. People v. Chilton, 69 NY2d 928 (1987); People v. Ingle, 36 NY2d 413 (1975); People v. Johnson, 178 AD2d 549 (2d Dept. 1991). The issue that this Court must determine is at which point should P.O. Perez have stopped her investigation and allowed defendant to leave the scene.

In People v. Milaski, 62 NY2d 147 (1984), two State Troopers on routine patrol observed the defendant traveling in a parking area at a high rate of speed. As the defendant's vehicle [*3]approached the troopers' vehicle, the defendant turned his lights off then back on again. The defendant backed up and either placed the vehicle in park or used the emergency brake and jumped out of the vehicle. The defendant produced his driver's license; however, he was unable to produce the vehicle's registration. Upon questioning by the troopers, the defendant explained that the vehicle belonged to a friend and he was simply returning it to him. According to one of the troopers, the defendant appeared nervous and gave inconsistent answers. Despite the fact that the registration check of the vehicle confirmed that the vehicle was registered to the defendant's friend, the state troopers continued to question the defendant and even subjected him to a pat-down frisk for weapons. Subsequently, the state troopers discovered a shotgun lying on the floor under the dashboard partially wrapped in a towel.

In reversing and vacating the guilty plea, the Court of Appeals held that:


[o]nce defendant had explained his conduct, produced his license and identified the owner of the car, and such ownership had been confirmed by the radio check, the troopers had no justification to detain defendant longer. At this point, the inquiry justified by the initiating circumstances had been exhausted, and no evidence of criminal conduct on defendant's part had been discovered.

Similarly, in People v. Chisholm, 180 AD2d 744 (2d Dept. 1992), the defendant was stopped by an officer for the New York State Racing Association as he walked away from a vehicle with a broken window. Two Racing Association detectives were called to the scene. When asked by the detectives what happened to the window, the defendant explained that 1) the vehicle belonged to him and 2) he had broken the window. Although the defendant had no form of identification on his person, he was able to produce the keys to the vehicle and identify items located in the trunk. The defendant was taken to an instigations office where he told the detectives that the vehicle actually belonged to his girlfriend. The detectives called the defendant's girlfriend, who confirmed that the vehicle belonged to her and that the defendant had her permission to use it. The detectives also ran the license plate number and verified ownership of the vehicle. Nonetheless, the detectives again asked the defendant to produce some form of identification. As the defendant pulled his hand out of his pocket, a vial of crack-cocaine fell to the floor. The defendant was arrested and following a search, the detectives discovered seven additional vials of crack-cocaine.

In reversing the lower court's denial of the branch of the defendant's motion to suppress physical evidence and statements made by him, the Appellate Division held that "once [the detectives] determined that the vehicle had not been stolen and that the defendant was not guilty of any criminality, any further detention of the defendant was unjustified." Chisholm, 180 AD2d at 745-746; see also, People v. Donello, 103 AD2d 781 (2d Dept. 1984); People v. Pena, 242 AD2d 545 (2d Dept. 1997).

At the outset, this Court notes that prior to the stop, P.O. Perez did not observe defendant committing any violations of the Vehicle and Traffic Law of a moving nature, i.e., defendant was neither speeding, swerving, nor drifting into other lanes of traffic. Defendant was operating his vehicle in a prudent manner prior to the stop.

Due to the fact that P.O. Hernandez was never called to testify, there are several questions left unanswered. If in fact P.O. Hernandez thought that he detected the smell of alcohol emanating from defendant's vehicle, it is unclear why he himself did not order defendant [*4]out of his vehicle. In addition, P.O. Perez never testified that she actually observed P.O. Hernandez approaching defendant's vehicle. If the patrol vehicle was parked behind defendant's vehicle and P.O. Perez was walking towards the patrol vehicle, then P.O. Hernandez would be behind her. From her vantage point, P.O. Perez would not have been able to observe P.O. Hernandez walk over to the driver's side of defendant's vehicle.

Furthermore, while P.O. Perez testified that she observed defendant to have bloodshot watery eyes and his speech to be slow and slurred, she explained that such signs could be attributed to reasons wholly unrelated to intoxication. This Court finds it suspect that despite being an experienced officer, who has been involved in approximately 75 to 100 arrests related to driving while intoxicated, P.O. Perez failed to smell any alcohol emanating from either defendant or his vehicle in the first instance. Fully cognizant of the various indicia of intoxication, the existence of several signs of intoxication, i.e., bloodshot watery eyes and slurred speech, should have alerted P.O. Perez to the possibility that defendant was driving while intoxicated. Had P.O. Perez smelled alcohol on defendant's breath when she first approached defendant's vehicle, she should have arrested defendant immediately especially since she observed him to have bloodshot watery eyes. Instead, P.O. Perez walked back to the patrol vehicle to check the driver's license. Her testimony on cross-examination is consistent with her actions and the Court discounts her initial version as testified to on direct examination.

The sequence of events in the instant case is critical. It appears that defendant only spoke to P.O. Perez after she asked him where he was going and what he had been drinking. If P.O. Perez posed the aforementioned questions prior to getting the paperwork, which proved to her satisfaction that the vehicle was properly insured and registered, then neither defendant's responses to her questions nor the observations made as to defendant's speech being slow and slurred would be suppressed. But, such is not the case herein.

When she first approached defendant's vehicle, P.O. Perez testified that she observed the temporary tag located on the upper left corner of the windshield. She further testified that the temporary tag appeared valid. Even though P.O. Perez determined that all of defendant's paperwork was valid, she went back to her patrol vehicle to further check the driver's license. In the midst of examining the driver's license, her partner informed her that he thought he smelled alcohol in defendant's vehicle. It was only after defendant was detained, longer than was necessary for her to determine that the vehicle was properly registered and insured, that P.O. Hernandez first thought he smelled alcohol coming from the vehicle. P.O. Perez questioned defendant after she approached his vehicle for the second time, not in the first instance as she testified on direct examination.

As stated previously, defendant was never observed to be committing any traffic violations of a moving nature. Once defendant's papers were found to be in order, P.O. Perez no longer had reasonable suspicion to believe that defendant was violating any law or traffic regulation. Therefore, the further verification of defendant's license was unnecessary as the original purpose for stopping defendant's vehicle was to ensure that the vehicle was properly registered and insured. At that time, the "initial justification for seizing and detaining [defendant] was exhausted. Banks, 85 NY2d at 562. Any further detention of defendant was unjustified and defendant should have been permitted to leave the scene. Rather, defendant was detained at the scene for approximately 20 minutes as he had been pulled over approximately at 6:20 a.m. but not placed under arrest until 6:40 a.m. Since P.O. Perez retained defendant's paperwork in order to verify same, defendant was effectively forced to remain at the scene until [*5]P.O. Perez returned from the patrol vehicle. This continued detention of defendant constituted an unlawful seizure. The circumstances herein transformed a lawful stop into an illegal detention.

With respect to the legality of police actions, " the People must carry the burden, in the first instance, of going forward with credible evidence establishing the legality of the police conduct in question ." Matter of Carl W., 174 AD2d 678, 680 (2d Dept. 1991). This Court finds that the People have failed to meet their burden of establishing the legality of the police conduct.

At the close of the hearing, this Court granted defendant's motion to suppress in its entirety and suppressed the observations of the officer, the results of the Intoxilyzer, and defendant's statements. However, the officer's observations related to defendant's bloodshot watery eyes should not be suppressed as these observations were made during the initial lawful stop.

Accordingly, defendant's motion to suppress is granted in part. The officer's observations related to defendant's unsteadiness on his feet, the smell of alcohol on his breath, and the results of the Intoxilyzer are hereby suppressed as the products of the unlawful seizure of defendant. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.

This constitutes the decision and order of this Court.

Dated: March 3, 2015

Bronx, New York

_______________________________

Hon. Armando Montano