The defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192.2, Driving While Intoxicated, as an unclassified misdemeanor, one (1) count of violating Vehicle and Traffic Law §1180d, Speed in Zone, as a traffic infraction and one (1) count of violating Vehicle and Traffic Law §1111d(1), Passed Red Light, as a traffic infraction.

On August 14, 2008, upon stipulation of both parties, this Court conducted a Dunaway /Huntley / Mapp hearing.

The People called one witness to the hearing, Police Officer Brendan Barnes. The defendant did not call any witnesses. Based upon the testimony of Police Officer Brendan Barnes, the Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACTS

The Court finds the testimony of Police Officer Brendan Barnes to be credible. Police Officer Brendan Barnes is currently a fourteen (14) year veteran with the Nassau County Police Department and prior to that time he served twelve (12) years with the New York City Police Department.

Police Officer Brendan Barnes also testified he received training at the Police Academy relating to Standard Field Sobriety Tests ("SFST"), has made over 500 Driving While Intoxicated [*2]("DWI") arrests and has assisted in approximately 1,000 DWI arrests.

On September 15, 2007, Police Officer Brendan Barnes was working the 9:00 p.m. to 7:00 a.m. tour in Nassau County, New York, in uniform and in a marked Nassau County Police car. At approximately 1:00 a.m. on September 15, 2007 Police Officer Brendan Barnes received a call to assisted Detective Gary Ferrucci at the intersection of Fulton Avenue and Smith Street in Hempstead, New York. Police Officer Brendan Barnes reported and arrived at the seen at approximately 1:05 a.m. whereupon he conferred with Detective Ferrucci who advised that he pulled the defendant over for going through a red light and also administered some SFST. Detective Ferrucci also advised the defendant had slurred speech, bloodshot eyes and there was an odor of alcohol. Thereafter, Police Officer Brendan Barnes approached the defendant who was seated in the defendant's parked car.

Police Officer Brendan Barnes instructed the defendant to get out of the car and together they walked approximately 10 - 15 feet up a slight incline to the sidewalk which was level. During this brief period of time, Police Officer Brendan Barnes testified that the defendant did not have any difficulty getting out of his car or walking. However, once Police Officer Brendan Barnes began to administer the SFST, Police Officer Brendan Barnes testified he did notice the defendant had slurred speech, watery and bloodshot eyes and an odor of alcohol. Police Officer Brendan Barnes then administered several SFST.

STANDARD FIELD SOBRIETY TESTS ("SFST")

1.Horizontal Gaze Nystigmas Test ("HGN")

Police Officer Brendan Barnes testified he explained the HGN test to the defendant and received confirmation from the defendant he understood how the HGN test would be administered, whereupon the HGN and test was performed.

Police Officer Brendan Barnes testified that the results of the HGN tests revealed (i) lack of smooth pursuit; (ii) maximum deviation and (iii) angle of onset prior to 45 degrees.

On cross-examination Police Officer Brendan Barnes did admit that he failed to place the letter "P" for "positive" on the Standard Field Sobriety - Field Notes form (PDCN30-11/01) in the box provided for on the form labeled "Angle of onset prior to 45 degrees" as an oversight. (See defendant's Exhibit A).

Based upon the results of the HGN test, Police Officer Brendan Barnes testified it was his opinion the defendant had a blood alcohol content of approximately .10%.

2.Romberg Test

Police Officer Brendan Barnes then explained the Romberg Test to the defendant and received confirmation from the defendant that defendant understood how the Romberg Test would be administered whereupon the Romberg Test was then performed. [*3]

The Romberg Test is used to determine balance. The driver is instructed to stand with feet together and hands down at sides. The driver is told to close his eyes, tilt his head slightly back and estimate 30 seconds.

In the instant matter, Police Officer Brendan Barnes testified that defendant estimated the time to be 16 seconds and swayed 2 - 3 inches. The Court also notes that this information is contained in the Standard Field Sobriety Field Notes (defendant's Exhibit A) prepared by Police Officer Brendan Barnes.

Police Officer Brendan Barnes testified based upon the results of the Romberg Test it was his opinion the defendant was intoxicated.

3.Finger-to-Nose-Test (FTN")

Police Officer Brendan Barnes testified he then explained the FTN test verbally to the defendant and also demonstrated the test to the defendant who thereafter confirmed he understood how the FTN test would be administered whereupon the FTN test was then performed.

Police Officer Brendan Barnes testified that defendant was unable to perform the test properly and based upon the foregoing it was Police Officer Barnes' opinion that the defendant was intoxicated.

CONCLUSIONS OF LAW:

PROBABLE CAUSE TO ARREST DEFENDANT

This Court finds that there was probable cause to arrest the defendant for DWI based upon Police Officer Brendan Barnes' observation of the defendant, who exhibited signs of red and bloodshot eyes, slurred speech and an odor of alcohol, the defendant's poor performance on the three different SFST that were performed and Detective Gary Ferrucci advice that he pulled the defendant over for running a red light.^[FN1]

STATEMENTS MADE BY DEFENDANT

Although counsel stipulated that a component of this hearing was also a Huntley hearing, which challenges the voluntariness of alleged statements the defendant made, the People did not offer any testimony regarding what, if any, statements the defendant may have made or any of the facts surrounding the alleged statements.

It is well settled that the burden of proof as to the voluntariness of the defendant's alleged statement is on the People. The Court must find voluntariness beyond a reasonable doubt before the alleged statement can be submitted to the jury. See, People v. Huntley, 15 NY2d 72 (1965). In the [*4]instant action, since the People failed to satisfy their burden of proof, the statement, if any, allegedly made by the defendant is suppressed.

BREATHALYZER EXAMINATION

A Mapp Hearing deals with the admissibility of physical evidence ^[FN2] obtained by the police as a result of a search and seizure pursuant to a warrant or consent or incident to an arrest or that no search at all occurred. It is well settled that a violation of the defendant's constitutional rights regarding the seizure of the defendant's physical evidence must be suppressed. (See, Mapp v. Ohio, 367 US 643.)

The People initially have the burden of proving that the evidence was seized legally. Thereafter, the defendant has the burden of proving illegality of the seized evidence by preponderance of the evidence. (See, People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971). The People have the burden of going forward to show the legality of the police conduct in the first instance (People v. Whitehurst, 25 NY2d 389, 391, 306 NYS2d 673; People v. Malinsky, 15 NY2d 86, 91 n. 2, 262 NYS2d 65, 70; People v. Berrios, 28 NY2d 361, 32 NYS2d 884 (1971). It is the accused, not the People, who must shoulder the burden of persuasion on a motion to suppress evidence (People v. Berrios, 28 NY2d 361, 367, 321 NYS2d 884, 888 (1971); Nardone v. United States, 308 US 338, 341, 60 S.Ct. 266, 84 I. Ed. 307)).

Counsel for defendant argues that the results of the breathalyzer should be suppressed because the People did not offer any evidence regarding how the breathalyzer test was administered. The purpose of the Mapp hearing is to test the constitutionality of the evidence that was seized. The issue regarding the admissibility of how the breathalyzer was administered, after a valid arrest, is best left for trial, where the trier of fact can determine the appropriate weight of the evidence as well as the credibility of those called to testify regarding the procedures employed.

In People v. Alvarez, 70 NY2d 375 (1987) the Court of Appeals held that the failure to properly administer a breathalyzer test does not violate the Due Process Clause of the State Constitution (NY Const., Art. I, §6). Similarly, in California v. Trombetta, 464 US 479 a unanimous Supreme Court also held that the failure to properly administer a breathalyzer test does not violate the Federal Constitution.

In both People v. Alvarez and California v. Trombetta, supra , the defendants were arrested for separate unrelated drunk driving offenses and given a breathalyzer test. The defendants thereafter moved to suppress the breathalyzer test because the administration of the tests destroyed the breath samples and therefore alleged a violation of the defendants constitutional rights because the police [*5]were required to preserve a second sample for later use by defendants.

In holding that the defendants constitutional rights were not violated, regarding the administration of the breathalyzer tests, the court in People v. Alvarez, supra , (quoting California v. Trombetta) held "... a defendant at trial can adequately explore malfunctions caused by faulty calibration, radio wive interference, contamination of the sample by foreign objects, or operator error by examining the machine, reviewing calibration and similar records and questioning the officer who administered the test."

In the instant action, Detective Ferrucci pulled the defendant over for running a red light. The standard to justify on automobile stop is not as stringent as the probable cause standard necessary to effectuate a valid arrest.

In People v. Chilton, 69 NY2d 928, 516 NYS2d 633, 509 NE2d 327 (1987), the Court of Appeals affirmed the holding of a County Court that the standard to stop a car was not probable cause, but rather that the legality of a stop should be measured against a reasonable suspicion standard. The case law defining the standard for a stop breaks down into two categories: (1) reasonable suspicion of criminal activity; and (2) an "articulable" reason to stop.

Reasonable suspicion of criminal activity is a broad category encompassing virtually any violation of law from felonies to equipment violations. In the landmark case of People v. Ingle, 36 NY2d 413 (1975), the court held that a police officer may stop an automobile when the police officer reasonably suspects a violation of the Vehicle and Traffic Law.

In the instant action, Police Officer Brendan Barnes had testified the Detective Ferrucci had advised that the defendant was pulled over for running a red light, a violation of the Vehicle and Traffic Law. Based upon the foregoing, Detective Ferrucci had more than reasonable suspicion the defendant was in violation of the law, he had actual knowledge, having witnessed the defendant's traffic violation. Therefore, based upon the foregoing, this Court finds that the initial stop of defendant's automobile by Detective Ferrucci was proper and as previously discussed, the subsequent arrest of the defendant for DWI was proper.

Accordingly, any evidence that defendant claims should be suppressed based upon the Mapp component of this hearing is denied as the initial stop and subsequent arrest was valid ^[FN3]. [*6]

SO ORDERED:

__________________________________

DISTRICT COURT JUDGE

Dated: September 23, 2008

cc: Kuczinski, Vila & Associates, P.C.

Kathleen M. Rice, District Attorney