People v Cimino |
2015 NY Slip Op 51139(U) [48 Misc 3d 1215(A)] |
Decided on August 3, 2015 |
Just Ct Of Town Of Webster, Monroe County |
DiSalvo, 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This opinion is uncorrected and will not be published in the printed Official Reports. |
People of the
State of New York,
against Christopher B. Cimino, Defendant. |
The defendant was charged with driving while ability impaired by
drugs, VTL § 1192 (4), and being an unlicensed operator, VTL § 509 (1), by uniform traffic informations on August 11, 2014 at approximately 2:33 A.M. The latter charge was dismissed for failure to provide a supporting deposition within thirty days as required by CPL § 100.25 (2).The People presented one witness, to wit: Webster Police Officer Scott Smith. Officer Smith testified that he was dispatched to a residence on Hard Rock Road because of a neighbor complaining about a noisy house party. While Officer Smith was speaking to the owner of the residence in question, he observed a red Cadillac that drove by the home and then turned around and came back in front of the same residence. He further testified that the vehicle stopped in front of the driveway of said residence. He then stated that he approached the vehicle to advise the driver that the party was winding down and that if he was just arriving there was no reason to stay. He indicated that the driver rolled down the window in response to the approach of the officer. In so doing the officer detected the odor of marijuana emanating from the said vehicle. The officer asked the driver if he had been smoking marijuana, who indicated that he had done so. The driver had no identification on his person, but identified himself as Christopher Cimino.
The defendant then testified on his own behalf. He stated that he drove onto Hard Rock Road at the time in question to attend a party. He saw cars parked on both sides of the road and was unable to park. So he turned around at the end of the road, which was a cul-de-sac. Upon turning around he proceeded back toward the house that was hosting the party. He stated that as he was approaching the front of that house he was going approximately five miles per hour. He observed a police officer in front of said house, whereupon he made eye contact with the officer. He further testified that the officer motioned him to stop his vehicle, which he in fact did. That is when the defendant lowered his window and the officer informed him that the party was over and that there was no reason to stay. This led to the officer's detection of the odor of marijuana, which led to the officer ordering the defendant out of his vehicle.
There is a substantial difference between the testimony of the officer and
the testimony of the defendant. The officer stated that he observed the defendant's
vehicle to be stopped in the road on Hard Rock Road. He further indicated that the
defendant stopped his vehicle on his own accord. The defendant testified that he stopped
his vehicle upon being directed to do so by Officer Smith. This then begs the question as
to which set of facts the court should rely on. Both individuals testified credibly.
Issues Presented.
Was the defendant's car stopped but not parked when approached by the officer or was it
moving when stopped?
Did the officer have authority to approach the defendant's stopped but not parked
vehicle?
Did the officer have probable cause to stop the defendant's vehicle?
Did the officer have probable cause to order the defendant to exit the vehicle?
Did the office have probable cause to arrest the defendant?
Approaching a Stopped But Not Parked Vehicle.Both the testimony of the officer and
the defendant established that the said vehicle was not parked. The officer's testimony described the defendant's vehicle as being stopped in the road in front of the residence hosting the party on Hard Rock Road."Determination whether a seizure occurred herewhere the car was neither
parked nor movingrequires the fact finder to apply a settled standard:
whether a reasonable person would have believed, under the circumstances,
that the officer's conduct was a significant limitation on his or her freedom
(see, People v Bora, 83 NY2d 531). That involves consideration of all the factsfor example, was there a chase; were lights, sirens or a loudspeaker used; was the officer's gun drawn, was the individual prevented from moving; how many verbal commands were given; what was the content and tone of the commands; how many officers were involved; where did the encounter take place (id.)." (People v. Ocasio, 85 NY2d 982,984, 629 N.Y.S.2d 161,162 [1995])
Under that standard the initial approach of the officer to the defendant's stopped vehicle
could not be considered a significant limitation on the defendant's freedom. However, the analysis does not end there."Even where no forcible seizure occurs, privacy interests may still be implicated. An intrusion that does not rise to a seizure must be predicated on more than a hunch, whim, caprice or idle curiosity ( People v De Bour, 40 NY2d 210, 217). In the case of a car that has been approached but not seized, as we recently noted in People v Spencer (84 NY2d 749), the police must possess an articulable basis for requesting information. That is supplied by an objective, credible reason not necessarily indicative of criminality (see, e.g., People v Hollman, 79 NY2d 181, 187, 194 [defendant's placement of bag at distance from himself]; People v Harrison, 57 NY2d 470, 475, supra [dirty condition of rental car]; People v Moore, 47 NY2d 911, revg for reasons stated in dissenting opn 62 AD2d 155, 157-160 [bleeding defendant carrying television in pillow case]; People v De Bour, 40 NY2d 210, 220, supra [defendant's crossing of street upon sighting of officers])."[FN1]
In this case the reason for the officer's approach of the defendant was twofold. As stated
in his supporting deposition he"... approached the vehicle to inform the operator the party was winding down, and that if he was just arriving there was no reason to stay." First, it was instructional, i.e. advising the defendant that the house party was over. Second, it was informational, in that the officer wanted to know if the defendant was just arriving at the party. "In fact, it is well established by prior case law that a police officer, in directing a level I request for information to an occupant of an already-stationary vehicle, is entitled to ask such a personwhether the driver or a passengerfor documentary identification, such as a driver's license." (People v. Thomas, 19 AD3d 32, 42, 792, N.Y.S.2d 472, 480. [1st Dep't 2005]). In the current case it would appear that the defendant voluntarily rolled down the window, which resulted in the officer noticing the odor of marijuana coming from the defendant's vehicle.If in fact the defendant stopped his vehicle on his own and was standing and not parked in
the road, the officer had the right to approach the vehicle and inquire as to why the defendant was there. Thus any observation of any illegal activity of the defendant made after this lawful approach would be the basis for probable cause to detain the defendant.Stopping a Moving Vehicle. The standard for stopping a moving vehicle by a police
officer is higher than the standard for approaching a parked or a standing vehicle. That isIn the instant case there was no testimony by the officer that prior to the stop he had either
reasonable suspicion that a crime was about to be committed or was being committed by thePeople's Burden of Going Forward. This all brings us back to the original question of
fact. Was the defendant's car stopped or in motion at the time it was detained by the arresting"It is the People's burden to demonstrate the legality of police conduct in the first instance (see, People v Berrios, 28 NY2d 361, 367; People v Malinsky, 15 NY2d 86, 91 n 2; People v Wise, 46 NY2d 321, 329). The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him (see, People v Berrios, supra at 367; People v Baldwin, 25 NY2d 66, 70; People v Whitehurst, 25 NY2d 389, 391; Nardone v United States, 308 US 338, 341-342), and that the police lacked probable cause to arrest him (see, People v Milhouse, 246 AD2d 119)." (People v. Thomas, 291 AD2d 462,463, 738 N.Y.S.2d 357 [2002])
As previously stated, both the officer and the defendant testified credibly.I note that the
officer's testimony is consistent with the statements made in the addendum to his supportingAuthority to Order Defendant From the Vehicle and Probable Cause to Arrest. Since
the officer was justified in approaching the defendant's vehicle and that upon said approach heUnder the facts and circumstances herein, the court concludes that the defendant's vehicle
was stopped but not parked when approached by the officer. The People have met their burdenHon. Thomas J. DiSalvo
Webster Town Justice