[*1]
People v Fassberger
2015 NY Slip Op 50939(U) [48 Misc 3d 1202(A)]
Decided on June 19, 2015
District Court Of Suffolk County, First District
Wilutis, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 19, 2015
District Court of Suffolk County, First District


People of the State of New York,

against

Justin Fassberger, Defendant




2013SU038147



For the Defendant: Frank A. Tinari



Central Islip, NY 11722



For the People:



A.D.A. Daniel Fischer



for Thomas J. Spota, District Attorney of the County of Suffolk


Karen M. Wilutis, J.

The defendant herein is charged with driving while intoxicated (VTL §1192 (3)). Dunaway/probable cause, Huntley and refusal hearings were held to determine the admissibility at trial of evidence obtained against the defendant.



The Court heard the testimony of Suffolk County Police Officer Harry Jos, who was working a 9pm to 7am tour on September 7, 2013 in uniform in a marked unit in the East Northport/Elwood area. At approximately 0450 hours Officer Jos was operating his sector car on Elton Drive and noticed a vehicle parked on the right-hand side of the road with its lights turned off and someone in the driver's seat. Officer Jos testified that he "got close behind the car [and] stopped behind the car." He further testified that he noticed a pile of garbage outside the vehicle on the driver's side and "felt that was suspicious", so he "was going to interview the occupant" of the vehicle. Officer Jos testified that Elton Drive was a residential area, that people park in front of their homes in the area and that at that time he did see other cars parked on that road.



Officer Jos testified that he pulled behind the subject vehicle, got out of his car and approached the driver's side of the vehicle, at which time he could see that the vehicle was running and that the windows were up. He knocked on the driver's side window and the person inside rolled down the window. Officer Jos testified that he asked that person for identification and the person produced a New York State photo ID matching defendant Justin Fassberger. No [*2]other persons were in the vehicle. The officer noticed that the defendant was eating and he asked the defendant to speak with him, whereupon the defendant finished eating. Officer Jos stated that he noticed a strong odor of an alcoholic beverage coming from the defendant and the vehicle, that he used his flashlight to illuminate the inside of the vehicle and that he observed the defendant to have bloodshot glassy eyes and slurred speech. When asked if he had been drinking, the defendant initially stated no and then said that he'd had "three beers a few hours ago." Officer Jos asked the defendant to retrieve the garbage and put it in the vehicle and to get out of the vehicle, which the defendant did. The defendant walked to an area between the two cars. Officer Jos noted that the defendant's gait was unsteady and that there was a strong odor of an alcoholic beverage as the defendant spoke with him outside the vehicle.



The defendant was asked to perform standardized field sobriety tests. The Horizontal Gaze Nystagmus test showed all six clues for intoxication. On the walk-and-turn test the defendant exhibited seven of eight clues. On the one-legged stand test the defendant exhibited two of four clues. Officer Jos also asked the defendant to take a pre-screen breath test, which indicated the presence of alcohol. Officer Jos testified that he was of the opinion that the defendant was intoxicated and that he placed the defendant under arrest at 0515 hours and transported him to the Second Precinct for processing.



At the precinct the defendant was read the chemical test warnings verbatim from the Alcohol/Drug Influence Report [hereinafter "AIR"] and asked at 0525 hours if he would submit to a breath test. Officer Jos testified that the defendant stated, "I'm not taking any test" and that the defendant wrote the word "refuse" on the AIR and placed his initials on the form. When asked again to take a blood test at 0540 hours the defendant stated, "No." At 0555 hours, the defendant was again asked to take the test and stated, "I'm not taking a test." Officer Jos read the Miranda warnings to the defendant, who stated that he understood same but did not want to speak with the officer.



With regard to the defendant's motion to suppress on the grounds of an illegal seizure and/or arrest, the Court initially notes that this case does not involve a law enforcement stop of a vehicle and it has been held that "the right to stop a moving vehicle is distinct from the right to approach the occupants of a parked vehicle." (People v. Spencer, 84 NY2d 749 [1995]). To properly approach a person in a parked vehicle, the police must possess "an articulable basis for requesting information [which is] supplied by an objective, credible reason not necessarily indicative of criminality." (See People v. Ocasio, 85 NY2d 982 [1995]; People v. Hollman, 79 NY2d 181 [1992], citing People v. DeBour, 40 NY2d 210 [1976]). A police officer's approach of a person for purposes of requesting information or identification cannot be based "on mere whim or caprice." (See Hollman, supra at 190). Applying the above principles to the testimony elicited herein, it is the opinion of this Court that the defendant's motion to suppress must be granted.



Officer Jos testified that, as he was proceeding along Elton Drive, he noticed the [*3]defendant's car parked on the roadway with its lights off, that as he approached he "noticed that there was someone in the driver's seat of that car" and that, "as [he] got close behind the car, [he] stopped behind the car." Officer Jos then testified that he also noticed garbage on the road by the side of the car and that he "felt that was suspicious," so he "was going to interview the occupant." [emphasis added] The officer conceded, however, that the defendant's car was not parked an excessive distance from the curb, that Elton Drive does not have any "No Parking" signs on it, that there were no specifically delineated parking spaces on that road and that he did not cite the defendant for any violation of parking or littering offenses. Upon approaching the vehicle, Officer Jos knocked on the driver's window and asked the defendant to produce identification and then began asking questions of the defendant as to whether he had been drinking. The officer did not testify that he sought information about the source of the garbage on the roadway, the defendant's destination or his reason for being at the location. It is the opinion of this Court that the procedure employed by Officer Jos in this matter was conducted without the requisite objective, credible reason and was therefore unlawful. As such, the ensuing observations of the defendant, his statements and the results of any tests performed thereafter must be suppressed.



Parenthetically, the Court also notes that the facts as recounted at the hearing are inadequate to demonstrate the element of operation as it pertains to the arrest for driving while intoxicated; namely, that the defendant had recently moved the vehicle or that he had the intention of placing it into motion. Officer Jos acknowledged that he had no independent knowledge of how long the defendant's vehicle had been at the location and no other testimony was elicited as to the circumstances surrounding the defendant's presence at the location.



Accordingly, after hearing and evaluating all of the testimony presented herein, the defendant's motion to suppress is granted.



Dated: June 19, 2015



J.D.C.