People v. Perez-Correoso

48 Misc.3d 839

11 N.Y.S.3d 405

2015 N.Y. Slip Op. 25187

The PEOPLE of the State of New York, Plaintiff

v.Raynold PEREZ–CORREOSO, Defendant.

2013BX033888

Criminal Court, City of New York, Bronx County.

March 23, 2015.

Robert T. Johnson, District Attorney, Bronx, by Assistant District Attorney Xhijola Ruci.

Lily Goetz, Esq. & Scott Spivak, Esq., The Legal Aid Society, Bronx, Defendant's Attorneys.

Opinion

STEVEN HORNSTEIN, J.

The defendant is charged with driving while intoxicated, common law (VTL § 1192[3] ); driving while intoxicated, per se (VTL § 1192 [2 ] ); and driving while impaired (VTL § 1192[1] ). On December 11, 2014, the Court conducted a combined Mapp/Johnson/Huntley/Dunaway/Ayala hearing. At the conclusion of the hearing the parties requested an opportunity to file memorandums of law. The request was granted and the defendant, on January 23, 2015, filed a Memorandum of Law; the People, on March 2, 2015, filed an Affirmation in Opposition to Defendant's Memorandum of Law; and the defendant, on March 13, 2015, filed a Reply Memorandum of Law. The Court, having reviewed the respective submissions, makes the following findings of fact and conclusions of law:

Findings of Fact

The People called one witness, Police Officer Nicholas Mancuso. Officer Mancuso has been with the New York City Police Department for three years. While at the police academy, he received specialized training in the recognition of the signs of intoxication. He has also observed the effects of alcohol consumption during social settings. Of the fifty to sixty arrests in which he was the arresting officer, one involved driving while under the influence. He has also participated in three additional arrests involving driving under the influence in which he was not the arresting officer.

Following his academy training, Officer Mancuso was assigned to the 40th Precinct in Bronx County. On June 9, 2013, while on uniform patrol, Officer Mancuso was assigned to assist in a vehicle checkpoint established approximately thirty yards east of the intersection of Jackson Avenue and East 149th Street. On the northeast corner of the intersection was a school. On the southwest corner was public housing. The area in the vicinity of the intersection contained both residential and commercial buildings.

Officer Mancuso, Sergeant Alberto Gonzalez and four additional officers manned the site. Two marked patrol cars, both with turret lights flashing, were positioned at the checkpoint. Behind each patrol car were cones positioned in a manner designed to funnel traffic from two westbound lanes into one lane, toward the checkpoint. No testimony was elicited as to whether signs or other devices were employed to warn or announce to motorists either the existence or purpose of the upcoming checkpoint.

The checkpoint was established to ensure “vehicle safety,” “traffic safety,” “public safety” and to “check for traffic violations or intoxicated drivers.” Officer Mancuso stated that this intersection had a “typically higher volume of traffic as opposed to anywhere else in the precinct impact zone.” He did not, however, explain what he meant by an “impact zone” and he did not mention the reason why this location was so designated. Nor did he state the name or rank of the person(s) who selected the site or the manner in which the selection was made.

To achieve the various, non-prioritized purposes given for the checkpoint, Officer Mancuso was instructed to stop every third vehicle entering the checkpoint, as well as any vehicle which violated the Vehicle and Traffic Law. No testimony was offered as to who provided these instructions. Nor was there any testimony as to whether these operational procedures were in accordance with written or other established guidelines detailing how the checkpoint was to be conducted.¹

At approximately 11:40 p.m., Officer Mancuso observed a 1998 Ford Expedition in the checkpoint line. Office Mancuso approached the car. As he did so, the car was put in reverse and backed up approximately five yards, when its' rearward progress was impeded by another vehicle's position directly behind the Ford. Officer Mancuso ascribed no particular significance to the fact that the Ford had been placed in reverse and had traveled five yards or so.

Officer Mancuso and Sergeant Gonzalez approached the Ford's driver's side window.

Officer Mancuso knocked on the driver's side window and asked the driver (hereinafter “the defendant”) to put the car in park, roll down his window and provide his registration. The defendant complied with each request.

Officer Mancuso, from about two or three feet away, noticed that the seat belted defendant was “fidgety” and “moving around a lot”; that he appeared to have difficulty focusing on the instruction to exit the car; that his eyes were glassy and watery and that his breath bore the odor of alcohol. Notwithstanding these observations, Officer Mancuso initially wrote on a prisoner pedigree card describing the defendant's condition as “apparently normal.” At some point thereafter, however, this notation was crossed out and “intox” was written in.

Officer Mancuso also detected the odor of alcohol in the car itself. A visual inspection of the vehicle's interior, revealed a half-full, uncapped, brand-name bottle of liquor with a cup on top on the back seat, behind the driver.

When the defendant stepped out of the car, Officer Mancuso noticed that the defendant needed to hold onto the car to maintain his balance. Officer Mancuso, with the Sergeant at his side, asked the defendant, without administering Miranda warnings, whether he had anything to drink. Initially, the defendant stated “no.” When asked again, he stated he had two drinks. Officer Mancuso then asked where he was coming from. The defendant replied that he had been home and was going to a party in Orchard Beach. Prior to these inquiries, neither officer had drawn their firearms or physically restrained the defendant in any way. At approximately 12:08 a.m. Officer Mancuso, based on his observations and the defendant's responses, placed the defendant under arrest.

Officer Mancuso transported the defendant to the 45th Precinct for a breath test. The defendant slept at the precinct while awaiting arrival of the Highway One officer to administer a breath test. Fifteen minutes before the test was offered, Officer Mancuso noted that the defendant did not drink, eat, smoke or vomit.

At approximately 1:40 a.m., Highway One Police Officer Patel asked the defendant, in English, if he was willing to take a breath test. The non-English speaking defendant was then shown a Spanish video in which he was again asked if he would take the test. He was also instructed, via the video, that if he refused to take the test, his license would be suspended and his refusal could be used as evidence against him.

When the defendant agreed to take the test, Officer Patel demonstrated the use of the breathalyzer mouthpiece. The defendant, in the presence of Officer Mancuso, blew into the breathalyzer and registered a .11% blood alcohol level. Thereafter, he declined the coordination tests. Both the breath test and the defendant's interaction with the Highway One officer were recorded on videotape. The video was introduced as People's Exhibit Number one and the Court has reviewed the video.

Conclusions of Law

At a Mapp/Johnson/Dunaway hearing, when a defendant challenges the legality of a stop, seizure or arrest, the People have the initial burden of going forward with evidence demonstrating the legality of the police conduct. People v. Dodt, 61 N.Y.2d 408, 415, 474 N.Y.S.2d 441, 462 N.E.2d 1159 (1984) ; People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709 (1971). Upon meeting this initial burden, the burden shifts to the defendant to establish the illegality of the conduct by a fair preponderance of evidence. Id. at 367, 321 N.Y.S.2d 884, 270 N.E.2d 709. Here, the Court finds that the People have not met their burden of demonstrating the legality of the police conduct.

The stop of an automobile and the detention of its occupants constitutes a “seizure” within the meaning of the Fourth and Fourteenth Amendments of the United States Constitution (see Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 [1979] ) and under Article I, Section 12 of the New York State Constitution (see People v. Spencer, 84 N.Y.2d 749, 752, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995], cert. denied 516 U.S. 905, 116 S.Ct. 271, 133 L.Ed.2d 192 [1995] ). In general, a car stop is unreasonable absent an individualized suspicion of either a traffic infraction (see e.g. People v. Pealer, 20 N.Y.3d 447, 962 N.Y.S.2d 592, 985 N.E.2d 903 [2013] ; People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ) or criminal activity (see e.g. People v. May, 81 N.Y.2d 725, 727, 593 N.Y.S.2d 760, 609 N.E.2d 113 [1992] ). “A limited exception to the rule requiring individualized suspicion, however, allows standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives and that impose minimal intrusions on the motoring public.” Jacobs v. State, 308 Ga.App. 117, 117, 706 S.E.2d 737 (2011) ; see also City of Indianapolis v. Edmond, 531 U.S. 32, 36, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) ; Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

The United States Supreme Court has upheld checkpoints under the “special needs doctrine.” See Lynch v. City of New York, 589 F.3d 94, 100 (2d Cir., N.Y.2009), lv. denied 562 U.S. 995, 131 S.Ct. 415, 178 L.Ed.2d 344 (2009) ; see e.g. United States v. Martinez–Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (Mexican border checkpoints); Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (sobriety checkpoints); Illinois v. Lidster,

540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (checkpoint seeking information related to recent hit-and-run accident). Conversely, checkpoints...