| People v Wallgren |
| 2012 NY Slip Op 03238 [94 AD3d 1339] |
| April 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Wes Wallgren,Respondent. |
—[*1] Greenwald Law Offices, Chester (Gary Greenwald of counsel), for respondent.
McCarthy, J. Appeal from an order of the County Court of Sullivan County (LaBuda, J.),entered August 16, 2011, which granted defendant's motion to suppress evidence and dismissedthe indictment.
Two police officers employed by the New York City Department of EnvironmentalProtection observed defendant's vehicle moving slowly, stopping and starting, before it stoppedon the side of the road in a dark, rural area. The officers pulled up behind the vehicle, activatedtheir lights and approached defendant's vehicle. They testified that, as soon as defendant greetedthem, they detected an odor of alcohol and observed signs of intoxication, leading them toconduct field sobriety tests, which defendant failed. While arresting defendant for driving whileintoxicated (hereinafter DWI), defendant allegedly resisted the officers' attempts to place him inhandcuffs. At the police station, defendant hit one of the officers in the shoulder.
As a result of these actions, defendant was indicted for DWI (see Vehicle and TrafficLaw § 1192 [3]), resisting arrest (see Penal Law § 205.30), parking on ahighway (see Vehicle and Traffic Law § 1201 [a]), possession of an open containercontaining alcoholic beverages in a motor vehicle (see Vehicle and Traffic Law §1227 [1]), and harassment in the second degree (see Penal Law § 240.26 [1]).Following a hearing on defendant's suppression motion, County Court found that the officers'testimony was not credible, determined that they were not justified in approaching defendant'svehicle, granted the suppression motion and dismissed the indictment (People vWallgren, 32 Misc 3d 1232[A], 2011 NY Slip Op 51556[U] [2011]). The People appeal.
County Court erred in granting defendant's suppression motion. The police are allowed toapproach a vehicle that is already stopped and request basic information when there is an"objective credible reason to do so, not necessarily indicative of criminality" (People v Story, 81 AD3d 1168,1168 [2011]; see People v Ocasio, 85 NY2d 982, 984 [1995]). While "much weight mustbe accorded the determination of the suppression court with its peculiar advantages of havingseen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761 [1977]), "this ruleof deference must give way when the appellate court determines that the fact findings underreview are against the weight of the evidence" (People v Lopez, 95 AD2d 241, 252[1983], lv denied 60 NY2d 968 [1983]; see People v Pilotti, 127 AD2d 23, 29[1987]; see also People v Polanco, 292 AD2d 29, 33 [2002]; People v Tempton,192 AD2d 369, 370 [1993], lv denied 82 NY2d 760 [1993]). County Court found, andwe agree, that defendant's vehicle started and stopped several times before pulling over. Thepolice did not stop the vehicle, as it had already pulled over before they approached. Contrary tothe court's findings, however, we find that defendant's actions in driving in an inconsistent,jolting manner before stopping in a dark, rural area constituted an objective credible reason toapproach the vehicle to conduct a basic inquiry (see People v Story, 81 AD3d at 1168;see also People v Jaime, 171 AD2d 884, 884-885 [1991]). The court found that theofficers here intended to conduct a DWI investigation, thereby engaging in a pretext stop, andthat the officers admitted that defendant was in custody when they activated their emergencylights.[FN1]But the actual motivations or subjective intentions of the individual officers involved areirrelevant and do not make objectively lawful conduct illegal or unconstitutional (see Whrenv United States, 517 US 806, 813 [1996]; People v Robinson, 97 NY2d 341,349-350 [2001]; People v Ferraiolo, 309 AD2d 981, 982 [2003], lv denied 1NY3d 627 [2004]). Defendant's vehicle was not seized because a reasonable person would nothave believed, under the circumstances, that the officers' actions significantly limited his or herfreedom (see People v Ocasio, 85 NY2d at 984). Thus, the officers could approachdefendant's stopped vehicle and request basic information.
An officer testified that, upon approaching defendant's vehicle, defendant greeted him, atwhich time the officer immediately detected a strong odor of alcohol. County Court criticized theofficers for not inquiring as to defendant's health if they truly intended to conduct a welfarecheck. As soon as they smelled alcohol on the driver, however, the nature of the encounterchanged and the officers were not required to ignore this new information that they had acquired.At that point, the officers were not constrained to treat this encounter solely as a welfare check,as they now had "a founded suspicion that criminal activity [was] afoot," raising the situation tothe next level of intrusion and permitting them to interfere with defendant to the extent necessaryto obtain "explanatory information" (People v De Bour, 40 NY2d 210, 223 [1976]).[*2]
The officers' observations of defendant's appearance andbehavior provided probable cause to arrest him for DWI. Although we agree with County Courtthat some of the testimony concerning the administration of the field sobriety tests wasinconsistent, these inconsistencies were not so great as to render the officers' testimony entirelyincredible, and such a finding by County Court was against the weight of the evidence (seePeople v Tempton, 192 AD2d at 370-371; see also People v Blackman, 90 AD3d 1304, 1308 [2011]; People v Rice, 90 AD3d 1237,1238 [2011]). Even though the officer did not properly administer all of the tests, "probablecause need not always be premised upon the performance of field sobriety tests or any specificnumber of such tests" (People v Kowalski, 291 AD2d 669, 670-671 [2002] [citationsomitted]; see People v Fenger, 68AD3d 1441, 1443 [2009]). Defendant's performance on some of the tests, along with hisappearance and overall demeanor, provided probable cause to arrest him for DWI (see Peoplev Swanston, 277 AD2d 600, 601, 602-603 [2000], lv denied 96 NY2d 739 [2001]).County Court did not address the resisting arrest charge, apparently dismissing the charge onlybecause it found that the arrest was unlawful. Because we disagree with that finding, we alsoreinstate the resisting arrest count.
County Court found that an officer arbitrarily recorded only certain portions of the encounterwith his personal Blackberry cellular device. The nefarious implications of this finding are notsupported by the record. The officer testified that he had never previously recorded anything withhis Blackberry and was unfamiliar with the process. He realized that the device had stoppedrecording and thereafter reengaged it. He later learned that the device automatically stops after acertain time period. This uncontradicted testimony provided a rational explanation for why therecording—which is not required by law—is incomplete, and in no way renders theofficer's testimony incredible.
Similarly, no adverse inference or conclusion should be drawn from the officers' choice totake only a few pictures. County Court faulted the officers for not photographing defendantperforming the field sobriety tests, but such actions are generally not capable of being captured instill photographs. In any event, the police are not required to take photographs of anything inparticular. The presence or absence of pictures may be weighed by the jury, but should not affectthe ruling in this suppression motion. Although the officers did not take a picture of defendant'svehicle to prove that it was parked halfway in the driving lane, both officers testified to thateffect. We accept that testimony as credible (see People v Hills, 295 AD2d 365, 367[2002], lv dismissed 98 NY2d 730 [2002]), regardless of the lack of photographicsupport. Thus, the court should not have dismissed the count for parking on a highway.
A trial court may impose a sanction against the People for spoliation of evidence. CountyCourt found that the officers intentionally spoliated evidence by pouring out the liquid from apartially-full beer bottle and a can of alcohol found in defendant's vehicle.[FN2]Having dismissed the indictment, the court did not specifically state what, if any, sanction wouldbe [*3]imposed for this destruction of evidence. Upon remittal,the court may exercise its discretion to impose an appropriate, proportionate sanction, if any isdeemed warranted (see Marotta vHoy, 55 AD3d 1194, 1197-1198 [2008]; see also CPL 60.10; People vSpringer, 122 AD2d 87, 90-91 [1986], lv denied 69 NY2d 717 [1986]).
County Court should not have dismissed the charge of harassment in the second degree. Indismissing the entire indictment, the court did not mention that charge and made no credibility orfactual findings in relation to it. This Court may make necessary findings of fact where there hasbeen a full hearing (see People v Curran, 229 AD2d 794, 795 [1996], lv denied89 NY2d 863 [1996]). We have found that the police acted lawfully in approaching and arrestingdefendant. Even where an arrest is improper, however, a defendant can still be held to accountfor an "independent, unrelated act, lacking a causal connection" to the illegal police conduct, assuch act is considered attenuated and purged of any taint (People v Davis, 59 AD2d 722,723 [1977]). Here, after defendant was arrested on the side of the road, he was driven to thestation and processed. At the station, defendant was allowed to speak to his wife on thetelephone. When the call concluded, an officer directed defendant to return to a particular room.The officer testified, without contradiction, that defendant aggressively said, "Don't tell me whatto do," and when the officer responded, defendant swung and struck him in the shoulder. Oncedefendant struck the officer, any preceding unlawful conduct by the police "was attenuated by hiscalculated, aggressive and wholly distinct conduct" (People v Holland, 74 AD3d 520, 521 [2010], appealdismissed 18 NY3d 840 [2011]; see People v Mercado, 229 AD2d 550, 551 [1996],lv denied 88 NY2d 1070 [1996]). Thus, defendant was not entitled to suppression of hisstatements and actions at the police station relative to him striking the officer (see People vStone, 197 AD2d 356, 356 [1993], lv denied 82 NY2d 904 [1993]). Even if thepolice acted unlawfully at the roadside encounter, as County Court found, the court should nothave dismissed the count of harassment in the second degree.
We therefore deny defendant's suppression motion and remit the matter to County Court forfurther proceedings before a different judge.
Mercure, J.P., Lahtinen, Spain and Garry, JJ., concur. Ordered that the order is reversed, onthe law and the facts, motion denied, and matter remitted to the County Court of Sullivan Countyfor further proceedings not inconsistent with this Court's decision.
Footnote 1: The officers acknowledged thata motorist would be required to stop and should remain at the side of the road when policeactivate emergency lights, but defendant was already stopped before they activated their lights.Additionally, the officers testified that they activated their lights for the safety of themselves,defendant and others traveling on this dark, 55 mile-per-hour roadway, as well as to advise themotorist that the people approaching his vehicle were police officers as opposed to unknownstrangers.
Footnote 2: County Court found it"borderline incredible" that the police would pour liquid out of a container rather than secure it asevidence and submit it for "proper testing" (People v Wallgren, 2011 NY Slip Op51556[U], *7). Yet there is no indication that the police regularly collect or test the liquid in abeer bottle to verify that it is alcohol. Here, the officers did see and smell the liquid beforepouring it out, and they testified regarding their observations.