| People v Noble |
| 2017 NY Slip Op 07280 [154 AD3d 883] |
| October 18, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Cesar Noble, Appellant. |
Clare J. Degnan, White Plains, NY (Erica L. Danielsen and David B. Weisfuse of counsel),for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Hae Jin Liu, RaffaelinaGianfrancesco, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary,J.), rendered January 13, 2016, convicting him of aggravated unlicensed operation of a motorvehicle in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of those branches of the defendant's omnibus motion whichwere to suppress his statements to law enforcement officials and evidence of his refusal to submitto a chemical test.
Ordered that the judgment is reversed, on the law, those branches of the defendant's omnibusmotion which were to suppress the defendant's statements to law enforcement officials andevidence of his refusal to submit to a chemical test are granted, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Westchester County, for further proceedingsconsistent with CPL 160.50.
On September 28, 2014, at approximately 5:30 a.m., Police Officer Evan Murtaugh was onpatrol and driving northbound on Route 9A in the Town of Ossining in a marked police vehiclewhen he noticed a car parked on the right side of the road. The car's engine was running and theheadlights were on, but the taillights were off. After pulling over behind the car, OfficerMurtaugh approached the driver's side of the car and observed the defendant, who was alone inthe vehicle and either asleep or unconscious, behind the wheel. Officer Murtaugh banged on thewindow with his hands and flashlight to get the defendant's attention. After between 30 and 45seconds, the defendant awakened, looked in Officer Murtaugh's direction, and "floored theaccelerator," causing the engine to increase the speed of its revolutions. The defendant thenattempted to shift the car into gear, at which point Officer Murtaugh opened the car door, whichwas unlocked, leaned inside, and turned off the ignition. After Officer Murtaugh asked thedefendant "where he was coming from, where he was going," Officer Murtaugh detected the"overwhelming odor of alcohol" and he observed that the defendant's eyes were "bloodshotglassy." Officer Murtaugh asked the defendant to step out of the vehicle and administered fieldsobriety tests. Based on the results of the tests, Officer Murtaugh arrested the defendant andbrought him to the police station. The defendant was charged with, inter alia, driving whileintoxicated and aggravated unlicensed operation of a motor vehicle in the first degree.
Prior to trial, the defendant moved to, inter alia, suppress his statements to Officer [*2]Murtaugh and evidence of his refusal to submit to a chemical teston the ground that they were the products of an unlawful seizure. The Supreme Court deniedthose branches of the motion on the ground that, after the defendant tried to move the vehicle, theofficer had a "founded suspicion" that criminal activity was afoot, and that he had the right toopen the car door and turn off the ignition for that reason and for his own safety.
By reaching into the defendant's vehicle and turning off the ignition, Officer Murtaughforcibly stopped the defendant, thus implicating the constitutional protections againstunreasonable searches and seizures. A forcible stop is not permitted unless there is a reasonablesuspicion that an individual is committing, has committed, or is about to commit a crime (seePeople v Spencer, 84 NY2d 749, 752-753 [1995]; People v Harrison, 57 NY2d 470,476 [1982]). In denying those branches of the defendant's omnibus motion which were tosuppress his statements and evidence of his refusal to submit to a chemical test on the groundthat Officer Murtaugh was permitted to forcibly stop the defendant on the basis of merely afounded suspicion that criminal activity was afoot, the hearing court erred (see People v DeBour, 40 NY2d 210, 215 [1976]). We note that the people did not argue before the hearingcourt and do not argue on appeal that Officer Murtaugh had reasonable suspicion that thedefendant had committed, was committing, or was about to commit a crime and, thus, that issueis not before us on appeal.
Accordingly, we reverse and grant those branches of the defendant's motion which were tosuppress his statements to law enforcement officials and evidence of his refusal to submit to achemical test. Without that evidence, there could not be sufficient evidence to prove thedefendant's guilt and, therefore, the indictment must be dismissed (see People v Graham, 134 AD3d1047, 1048 [2015]).
In light of our determination, we need not reach the defendant's remaining contentions.Balkin, J.P., Sgroi, Cohen and Duffy, JJ., concur.