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PEOPLE v. SMITH (2018)

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Criminal Court, City of New York.

The PEOPLE of the State of New York, Plaintiff, v. James SMITH, Defendant.


Decided: March 16, 2018

ADA Mattew Powers, ADA Kevin Timpone & ADA Latoya Cryder, for the People Virginia A. Conroy, Esq., for the Defendant

The defendant, James Smith, is charged with driving while intoxicated (VTL § 1192[3] ), and other charges.

On February 14 and February 15, 2018, a Dunaway, Mapp, Huntley, and Johnson hearing was held before this court. Police Officers Charles Feldman and Allison Timothy testified for the People. Based on their credible testimony, the court makes the following findings of fact and law.

Findings of Fact

Police Officer Charles Feldman

On June 17, 2017, Officer Feldman and his partner, Lieutenant Moreno, were on uniformed patrol in a marked police vehicle between the hours of 11:15pm, and 7:50am. At approximately, 5:00am, they drove their marked police vehicle to the intersection of Beach 116th Street and Beach Channel Drive, in Queens County. There, Officer Feldman “observed a vehicle in the left-hand lane, [with its] left blinker on, stopped at a red light.” The vehicle's engine was running. The officers remained in their car behind this vehicle for approximately sixty seconds as the traffic light went through one “light cycle”—the traffic light went from red to green back to red. The car did not move.

Officer Feldman then drove his car next to the vehicle at the traffic light and observed a “heavyset, black guy on the younger side [who was] asleep at the wheel.” The officer then positioned his car in front of the vehicle, exited his car, walked to the vehicle and knocked on the window. The man inside did not respond. However, the driver's side door was unlocked. Officer Feldman “opened the door[ ] and ․ shook the driver,” who woke up. Officer Feldman observed “a strong smell of alcohol from his breath [and] on his clothes.” Additionally, Officer Feldman observed that the driver had bloodshot watery eyes. And, the vehicle was in drive. The vehicle's gear was then shifted to park.

During this time, two additional officers arrived on the scene, Officers Timothy and Devonish. Officer Feldman “debriefed Officer Timothy of [sic] how [he] came to the vehicle.” Officer Feldman told Officer Timothy that “[the car] was stopped at the light, [the car] was in drive, keys in the ignition” and “I woke him up.”

Officer Feldman drove the vehicle away, while Officers Timothy and Devonish remained on scene with the driver. They transported him to the 112th Precinct. Eventually, Officer Feldman learned that the drive's name was “James Smith” but could not identify to person in court during the hearing.

Officer Allison Timothy

On June 17, 2017, Officer Timothy and her partner were on uniformed patrol in a marked police vehicle between the hours of 11:15pm, and 7:50am. At approximately, 5:04am, she received a mobile telephone call from Sergeant Kim, who was at the police precinct, to go to Beach 116th Street and Beach Channel Drive in Queens County. She responded to the location within two minutes. There, Officer Timothy observed a grey Chevy “parked on the corner” 1 and a “a male occupant sitting inside the vehicle.” The vehicle was turned off. She identified the defendant as the occupant of the vehicle. She also spoke to Officer Feldman and Lieutenant Moreno. They explained to her that the vehicle was stopped at the light and that they had to wake him up because he was sleeping behind the wheel. Additionally, they told her that the car was still in drive and that driver's foot was on the brake.

Officer Timothy approached the defendant who was awake in the driver's seat of the Chevy. She observed that he had bloodshot watery eyes, and his speech was slurred. Officer Timothy asked the defendant if he was drinking, to which the defendant responded he had a few drinks. The defendant was searched and then placed under arrest. On cross-examination, Officer Timothy testified that her understanding, after speaking to Officer Feldman and Lieutenant Moreno, was that she was to “bring the defendant in.”

Findings of Law

After observing in plain view, a grey Chevy stopped at a red light with its engine on, its left-turn light blinking, and not moving when the traffic light switched to green back to red, Officer Feldman had an articulable, level-I basis to approach the vehicle as his approach was “predicated on more than a hunch, whim, caprice or idle curiosity (People v. DeBour, 40 NY2d 210, 271 [1976] ). Because the driver was asleep behind the wheel and did not wake when the officer knocked on the window, he was authorized pursuant to the emergency and public safety exceptions to the warrant requirement to open the car door to check on the defendant and whether the car was in drive or park (see People v. Rossi, 99 AD3d 947, 949 [2d Dept 2012] [emergency exception]; People v. Johnson, 46 AD3d 276, 277 [1st Dept 2007] [public safety exception] ). Therefore, Officer Feldman's—and, subsequently, Officer Timothy's observations of the defendant's vehicle and the defendant's physical condition were lawfully obtained, and the defendant's motion to suppress those observations are denied.

But, the defendant's motion to suppress the statement that he had a few drinks is granted. At the time the defendant was asked the question, he was not allowed to leave as Officer Feldman and Lieutenant Moreno seized the defendant's vehicle and drove it back to the Precinct, while leaving Officer Timothy to complete the arrest Officer Timothy should have reasonably known that her query would have elicited an incriminating response (see People v. Evans, 9 Misc 3d 126[A] [App Term, 2d Dept 2005] ).

Finally, the defendant's motion to suppress his breathalyzer results and coordination test results is granted.

“[T]hough a defendant ․ has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance.” (People v. Berrios, 28 NY2d 361, 367 [1971] ).

Here, the only evidence provided regarding breathalyzer testing of the defendant was the testimony of Officer Timothy, that he consented to it. Further, no evidence was presented concerning whether and how the defendant consented to coordination testing. In presenting the very limited testimony of officer Timothy—who had only one time previously been the arresting officer in a DWI case and who has no training or experience concerning breathalyzer testing—regarding the breathalyzer testing of the defendant, and in presenting no evidence of the circumstances surrounding the coordination testing, the People failed to satisfy their burden of going forward with respect to the propriety of the police actions.

The foregoing constitutes the decision and order of the Court.


1.   But, later on cross-examination, Officer Timothy characterized the Chevy as parked at a “median” on Beach Channel Drive, and that she was sure that no officer moved the vehicle there.

Althea E. Drysdale, J.

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