| Matter of Stewart v Fiala |
| 2015 NY Slip Op 04857 [129 AD3d 852] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Robert Stewart,Petitioner, v Barbara J. Fiala et al., Respondents. |
Michael F. Dailey, Bronx, N.Y., for petitioner.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Claude Platton andValerie Figueredo of counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the Departmentof Motor Vehicles Appeals Board dated October 30, 2012, confirming a determination ofan administrative law judge dated February 7, 2012, which, after a hearing, found thatthe petitioner had refused to submit to a chemical test in violation of Vehicle and TrafficLaw § 1194, and revoked his driver license.
Adjudged that the determination is annulled, the petition is granted, with costs, andthe petitioner's driver license is reinstated.
On December 17, 2011, at 1:22 a.m., a police officer was patrolling West BostonPost Road in Mamaroneck as part of his assignment to a driving-while-intoxicated detail,when he observed a parked motor vehicle in the parking lot of a gym. The vehicle wasparked in a marked space, with the front end of the vehicle facing a fence, while the backend was facing the lot. The lights of the vehicle were on, and its engine was running. Itwas the only vehicle in the lot. Although the gym was closed, the officer knew thatpatrons of the adjacent restaurant, which was open, parked their vehicles in the gym's lot.The officer pulled his vehicle perpendicular to the rear of the parked vehicle, activatedthe emergency lights, and shined a light from his vehicle into the parked vehicle. Theofficer approached the parked vehicle and, upon observing indications of intoxication inthe petitioner, administered sobriety and breath tests, but not a chemical test. Thepetitioner was then placed under arrest. Following a license revocation hearing, thepetitioner's driver license was revoked.
At a hearing held pursuant to Vehicle and Traffic Law § 1194, thehearing officer is required to determine, inter alia, whether the police lawfully arrestedthe operator of the motor vehicle for operating such vehicle while under the influence ofalcohol or drugs in violation of Vehicle and Traffic Law § 1192 (see Matter of Baldwin v Fiala,102 AD3d 960, 961 [2013]; Matter of Livulpi v Swarts, 100 AD3d 759, 760 [2012]). Inorder for an arrest to be lawful, the initial stop must itself be lawful (see People v DeBour, 40 NY2d 210, 222 [1976]). Under the circumstances of this case, where theofficer prevented the petitioner from departing, activated his vehicle's emergency lights,and shined a light into the petitioner's parked vehicle, a forcible stop and detentionoccurred (see People vLoper, 115 AD3d 875, 879 [2014]; People v Hurdle, 106 AD3d 1100, 1103 [2013]; cf.People v Ocasio, 85 NY2d [*2]982, 984 [1995]; People v Phillips, 46 AD3d1021, 1022 [2007]). The Department of Motor Vehicles, however, failed to establishthat there was reasonable suspicion to justify the forcible stop and detention of thepetitioner's person or vehicle (see People v Creary, 61 AD3d 887, 889 [2009]) and,accordingly, the challenged determination cannot be sustained.
The petitioner's remaining contentions either have been rendered academic in light ofour determination or are without merit. Dillon, J.P., Leventhal, Chambers and Maltese,JJ., concur.