PEOPLE v. CATOR (2017)

Defendant has been indicted for Aggravated Driving While Intoxicated, [VTL 1192(2–a)(b) ], a class E felony; Aggravated Driving While Intoxicated [VTL 1192(2–a)(a) ], a misdemeanor; Driving While Intoxicated [VTL 1192(3) ], a misdemeanor, and Endangering the Welfare of a Child [PL 260.10(1) ], a class A misdemeanor.

By Omnibus Motion dated December 29, 2016, defendant moved for assorted forms of relief. The Court subsequently ruled on his Omnibus Motions and granted his application for a Probable Cause Hearing, a Sandoval Hearing, a Huntley Hearing and a Mapp Hearing. Pursuant to the Court's March 21, 2017 order, the motion for said hearings was granted, and the hearings were held in the presence of the defendant on March 21, 2017. The Court issued its oral decision following the Sandoval hearing on March 21, 2017, and issued a separate Order regarding the Sandoval issues. Defendant also sought review of the Grand Jury minutes and the Court in a March 21, 2017 Order, granted that review.

GRAND JURY

The defendant moves to dismiss or reduce the counts in the Indictment pursuant to CPL section 210.20(1)(b) and (1–a), asserting that the evidence before the Grand Jury was legally insufficient. He also moves to dismiss the indictment pursuant to CPL section 210.20(1)(c) asserting that the Grand Jury proceeding was defective within the meaning of CPL section 210.35.

Defendant asks the Court to determine in particular, if there was insufficient evidence of operation of the motor vehicle by the defendant upon a public highway. He also asks the Court to determine if the People's charge to the Grand Jury on the issue of operation was sufficient. Defendant asked the Court to disclose the minutes to defense counsel. In its March 21, 2017 order, the Court denied defendant's request for release of the minutes to counsel, without prejudice. Upon review of the minutes, the Court determines that counsel's assistance in review of the minutes is not needed, and so that motion is again denied.

The Court finds no evidence to indicate that the Grand Jury was illegally constituted as contemplated by CPL section 210.35(1).

The Court finds that the presentation of the case at bar was begun and completed in one day on September 1, 2016, that 16 or more grand jury members were continuously present and heard all the essential and critical evidence [CPL section 190.25(1) ] and more than twelve grand jurors voted to indict the defendant herein on all counts. [CPL sections 210.35(2) and (3) ].

The defendant also alleges that the Grand Jury proceeding failed to otherwise conform to the requirements of CPL Article 190 to such a degree that the defendant was prejudiced and that the Grand Jury's integrity was impaired. CPL section 210.35(5).

Upon its review, the Court finds that the instructions given to the Grand Jury were proper, legally adequate and not, as defendant asserts, too confusing. People v. Calbud, Inc., 49 NY2d 389, 394–395 (1980). No documents were improperly subpoenaed before the Grand Jury. The applicable rules of evidence were followed and there were no unauthorized persons present. The Grand Jurors were appropriately questioned prior to the presentment concerning their knowledge of the defendant and of the witnesses. The Court finds that the proceedings met the requirements of CPL Article 190.

The Court also finds that legally sufficient evidence was presented to the Grand Jury which supports each count of the indictment. CPL § 70.10(1); People v. Calbud, Inc., 49 NY2d 389 (1980).

The motion having been granted to the extent that the Court has made an In Camera inspection of the Grand Jury minutes and, upon such reading, the Court finding them to be legally sufficient, the motion to dismiss the indictment against the defendant upon the grounds that the grand jury proceeding was defective, the evidence before the Grand Jury was not legally sufficient to establish the offense(s) or any lesser included offense(s), or in the alternative, the charges should be reduced, is in all respects denied.

PROBABLE CAUSE/MAPP/HUNTLEY

Based on the proof at the hearing and the affidavits submitted on the motion, the Court find as follows:

Ontario County Deputy Schroo was the first officer at the scene. He had been directed to speak to defendant James Cator on an unrelated Ontario County matter, and drove to 12 Chapel Street, Village of Rushville, Town of Potter, Yates County, NY on February 15, 2016, in his marked patrol car, without an arrest or search warrant, to speak to Mr. Cator that afternoon. As he turned on to Chapel Street, a woman approached his patrol car, “waving her hands, hysterical, pointing at a black sedan.” T. 8. The sedan was pulling out of the 12 Chapel Street driveway, and as it pulled out onto Chapel Street, Schroo initiated his emergency lights. After Deputy Schroo initiated the emergency lights, the driver stopped in the middle of the highway, before backing back into the driveway. The vehicle traveled approximately 20 yards before it stopped and returned to the driveway.

Deputy Schroo then approached the driver in the vehicle, and noticed there was a driver and passenger in the vehicle. Deputy Schroo asked the driver for his New York driver's license, and noticed that he fumbled for many documents before finally retrieving the license. He then learned that the driver was James Cator. He had never seen Mr. Cator before and did not know who was in the vehicle until that time. At the hearing, there was no testimony by Deputy Schroo that the passenger of the car was a young child.

Before initiating the stop by turning on the emergency lights, Deputy Schroo did not speak to the woman he had seen pointing at the vehicle and there was no testimony that she said anything to him. After initiating the stop of the defendant's vehicle, Deputy Schroo spoke to her as he exited his vehicle, telling her to stand behind the police car, but he did not ask her any questions.

When Deputy Schroo was speaking to the defendant, related to the defendant getting his license, he observed that the defendant had bloodshot, watery eyes, slurred speech, incoherent speech, and a strong odor of alcohol on his breath. Based on these observations, he had the defendant exit the sedan to answer more questions, to observe him, and to ask him to submit to field sobriety tests. He noticed the defendant fell backwards into his vehicle while exiting the vehicle. He then had the defendant perform the horizontal gaze nystagmus test, the walk and turn test, the one-leg stand test, and modified Romberg test. Based on the defendant's performance on these tests, he determined that the defendant was intoxicated and put him under arrest for DWI. He then handcuffed the defendant, placed him in the back of his patrol car and contacted his sergeant, who instructed him to contact the Yates County Sheriff's Department to respond to the location. He then waited in the patrol car with the defendant until Yates County Sheriff's Deputy Daggett arrived at the scene.

When Deputy Daggett arrived at 12 Chapel Street, he saw the Ontario County patrol car with its lights activated, and he could see an individual in the back seat of the patrol car. Deputy Daggett first spoke to Deputy Schroo for five minutes while the defendant was seated in the back of Deputy Schroo's patrol car. He did not notice if the defendant was hand cuffed, but he knew the defendant was under arrest. Deputy Schroo did not tell Deputy Daggett whether or not he had given defendant his Miranda warnings upon his initial contact. Deputy Daggett observed the defendant had watery, glassy, bloodshot eyes, slurred speech, as well the odor of alcoholic beverage from his breath.

Deputy Daggett believed that the defendant was standing outside Deputy Schroo's patrol car when, without giving the defendant his rights, Deputy Daggett asked the defendant if he had been drinking. The defendant responded in the affirmative, stating that he had been drinking, that he had consumed one beer, a hard cider. The defendant agreed to submit to field sobriety tests, and Deputy Daggett then conducted the horizontal gaze nystagmus test, walk and turn test, one-leg stand test, while the defendant was not handcuffed. Deputy Daggett concluded from his observations of the defendant and his poor performance on the field sobriety tests that the defendant was intoxicated. Deputy Daggett then handcuffed the defendant, placed him under arrest, and read him his rights after placing the defendant in his patrol car. Deputy Daggett had consulted with Deputy Schroo when they first met about whether a Drug Recognition Evaluation (DRE) would be appropriate because defendant had told Deputy Schroo that he was on anxiety medications and Deputy Schroo believed that this issue should be looked at further. However, Deputy Daggett found out that no DRE expert was available, and so he decided to ask the defendant to have a blood draw at Soldiers and Sailors Hospital. After Deputy Daggett placed the defendant under arrest at the scene and read him his rights, he asked the defendant if he would consent to the blood draw. The defendant agreed and they went to the Hospital Emergency Room in Penn Yan where a lab technician drew the blood. The defendant signed a consent form before the blood was drawn. Deputy Daggett did not read the consent form to the defendant.

Sergeant Rider of the Yates County Sheriff's Department was also called to the scene. He did not speak with the defendant, but instead spoke to Jennifer, the defendant's fiancé, the same woman that had pointed to the black sedan in which the defendant was seated when Deputy Schroo first arrived at 12 Chapel Street. Jennifer told Sergeant Rider that the defendant, she and a young child had left 12 Chapel Street earlier that day together, in the black sedan, then came back to the residence. She said that she and defendant got out of the car and defendant shoved her to the ground, then he got into the driver's seat. Sergeant Rider made a domestic incident report, but no arrest came out of the matter.

The Court of Appeals has identified a gradual four-level test for evaluating police-citizen street encounters (People v. DeBour, 40 NY2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). The first level permits an officer to approach and request information based on an objective credible reason not necessarily indicating criminality (id.). Level two permits a greater intrusion and allows for a “common-law right to inquire,” which must be based on “founded suspicion that criminal activity is afoot” (id.). The third level is a forcible stop and detention, and must be based on a “reasonable suspicion” that a person has committed, is committing or is about to commit a crime (id.). Finally, at the fourth level, an arrest may be made if a police officer has probable cause to believe that the person to be arrested has committed a crime, or an offense in the officer's presence (id.). People v. Major, 115 AD3d 1, 4 [1st Dept 2014]

Before a person may be stopped in a public place a police officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL § 140.50). Reasonable suspicion is the quantum of knowledge *113 sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. (Compare Schwartz, Stop and Frisk: A Case Study in Judicial Control of the Police, 58 J.Crim.L.C. & P.S. 433, 445, with La Fave, ‘Street Encounters’ and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich.L.Rev. 40, 70.) To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, Supra; Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441). Nor will good faith on the part of the police be enough to validate an illegal interference with an individual (e.g., Terry v. Ohio, Supra; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, Supra; Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484; Smith v. County of Nassau, 34 NY2d 18, 355 N.Y.S.2d 349, 311 N.E.2d 489). People v. Cantor, 36 NY2d 106, 112–113 [1975].

Initially, the Court finds that the vehicle was in motion and moving on a public hightway, and was not stopped when Deputy Schroo initiated a stop by turning on the emergency lights of his police car. The stop of a moving vehicle by police is a DeBour level 3 forcible stop and detention. See People v. Ocasio, 85 NY2d 982 (1995). Here, the Court must conclude that at the time Ontario County Deputy Schroo activated his lights, causing the defendant to stop his car and back it from the street into his driveway, Deputy Schroo did not have reasonable suspicion that the defendant was committing, had committed, or was about to commit a crime.

Deputy Schroo's articulated reason for stopping the defendant was his observation of a “hysterical” woman standing outside 12 Chapel Street, pointing at the black sedan that was just leaving the driveway. Although Deputy Schroo had come to the Yates County residence in search of the defendant to speak to him about a matter in Ontario County, there was no testimony or evidence about the Ontario County investigation and no warrant had been obtained in the matter. There is no testimony or evidence to suggest Deputy Schroo had met the defendant before, and Deputy Schroo did not know what he looked like, did not know what car he drove, and did not know that it was the defendant driving the black sedan when he approached the address. Deputy Schroo did not speak to the woman before he activated his lights to initiate the stop, so he had no knowledge of the alleged criminal activity, which was only later learned by Sergeant Rider's questioning of the woman, Jennifer. In short, until Deputy Schroo actually stopped the vehicle, he did not know that it was Mr. Cator, the subject of the Ontario County matter, who was driving.

During his testimony at the hearing, Schroo failed to articulate his “logical deductions” that emanated from his articulated reason for the stop. People v. Cantor, 36 NY2d 106, 112–113 [1975]. Compare People v. Burgos, 300 AD2d 256, 256 (1st Dept 2002), where the court held: “The police had reasonable suspicion to pursue defendant based on a radio report of a man, possibly armed, beating a woman in front of a specific address, coupled with their observations of an argument between defendant and a woman, who were the only persons present at the location, followed by defendant's immediate flight upon the approach of the police, and the woman's act of pointing at defendant.” See also People v. Rosa, 67 AD3d 440 (1st Dept 2009), where the defendant's suppression motion was denied. In that case, the officer heard shots, saw several people pointing at defendant walking quickly away, and saw a man lying on the ground with other people around him.

Here, there was no dispatch radio call of any domestic incident and the deputy did not have any information from the unidentified “hysterical” woman, other than his observations of her pointing and crying when he initiated the stop. The deputy was not responding to a report of a crime. The deputy did not observe any criminal activity. The defendant was not attempting to flee the police, but returned to the driveway after the officer turned on the emergency lights. At no point in time prior to the stop did Deputy Schroo ascertain from the hysterical woman why she was pointing at or flagging down the car. It appears the stop was simply based on a hunch, which is insufficient under the law.

Additionally, Deputy Schroo had not observed any violation of the Vehicle and Traffic Law committed by the defendant at the time Deputy Schroo activated his lights and initiated the stop. Although he testified that he observed the black sedan cross the center line, he also testified that this did not occur until after he had activated his emergency lights, commencing the stop. Thus, the deputy lacked reasonable suspicion of a crime, and so the stop was unlawful. Defendant's motion to suppress all physical evidence, the results of the field sobriety tests and blood draw, as well as statements he made to police is therefore granted.

Even if the stop was held to be lawful, the Court would suppress the defendant's statements, because the defendant was asked if he had been drinking by Deputy Daggett before he administered the Miranda warnings, and after the defendant had been arrested and placed in custody by Deputy Schroo.

CONCLUSION

The motion to dismiss the Indictment in regard to the Grand Jury proceedings is DENIED. The motion to suppress and exclude in the criminal action [CPL 710.70 (1) ] all evidence and statements made by the defendant due to the illegal stop is GRANTED.

The foregoing constitutes the Opinion, Decision and Judgment of this Court.

IT IS SO ORDERED.

Jason L. Cook, J.