| Matter of Schoonmaker v New York State Dept. of MotorVehs. |
| 2018 NY Slip Op 06545 [165 AD3d 677] |
| October 3, 2018 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Stephen Schoonmaker,Petitioner, v New York State Department of Motor Vehicles,Respondent. |
Kantor, Davidoff, Mandelker, Twomey, Gallanty & Kohkba, P.C., Red Hook, NY(Michael S. Pollok and David Tolchin of counsel), for petitioner.
Barbara D. Underwood, Attorney General, New York, NY (Steven C. Wu and DavidLawrence III of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the New York StateDepartment of Motor Vehicles Administrative Appeals Board dated May 26, 2015, affirming adetermination of an administrative law judge dated April 10, 2014, which, after a hearing, foundthat the petitioner refused to submit to a chemical test in violation of Vehicle and Traffic Law§ 1194 and revoked his driver license.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs; and it is further,
Ordered that the stay of the revocation of the petitioner's driver license issued by this Courtin a decision and order on motion dated October 25, 2017, pending hearing and determination ofthis proceeding, is hereby vacated.
The findings of the administrative law judge are supported by substantial evidence (see300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 [1978]; Matter of Rosulo v State of N.Y. Dept. ofMotor Vehs., 153 AD3d 1346 [2017]; Matter of Hickey v New York State Dept. of Motor Vehs., 142 AD3d668 [2016]). The evidence adduced at the hearing included the testimony of the arrestingpolice officer, the testimony of the police officer who read the refusal warnings to the petitioner,and the written report of the petitioner's refusal to submit to a chemical test. This evidencedemonstrated that the police had reasonable grounds to believe that the petitioner had committeda traffic infraction and had been driving a motor vehicle while under the influence of alcohol ordrugs in violation of Vehicle and Traffic Law § 1192. Furthermore, the evidencedemonstrated that the police had probable cause to arrest the petitioner, that after the petitioner'sarrest, the officer gave him sufficient warning of the consequences of refusing to submit to achemical test, and that four times the petitioner refused the officer's request to submit to thechemical test (see Vehicle and Traffic Law § 1194 [2] [c]; Matter of Rosulo v State of N.Y. Dept. of[*2]Motor Vehs., 153 AD3d 1346 [2017]; Matter ofHickey v New York State Dept. of Motor Vehs., 142 AD3d at 669; Matter of Sharf v New York State Dept. ofMotor Vehicles, 74 AD3d 978 [2010]). Moreover, the respondent properly relied uponan adverse inference from the petitioner's failure to testify at the hearing (see 15 NYCRR127.5 [b]; Matter of Hickey v New York State Dept. of Motor Vehs., 142 AD3d at669).
Contrary to the petitioner's contention, the arresting officer lawfully stopped his vehicle. Theofficer had reasonable grounds to believe that a traffic violation had occurred as he observed thepetitioner's vehicle making an "erratic movement" by crossing over the white fog line off theright shoulder, and then moving left back into the lane in which he had been driving while theright signal light was engaged (see Vehicle and Traffic Law § 1128 [a], [d];People v Wohlers, 138 AD2d 957 [1988]). In the context of traffic stops, there is norequirement that a traffic violation be substantial since the facts observed by the officer need onlysupport a reasonable suspicion (seePeople v Guthrie, 25 NY3d 130, 133 [2015]; People v Ingle, 36 NY2d 413, 419[1975]; People v Eron, 119 AD3d1358 [2014]; People v Hoffman, 135 AD2d 299 [1988]). Contrary to the petitioner'sfurther contention, there was probable cause to arrest him for driving while intoxicated (see People v Johnson, 140 AD3d978, 979 [2016]). The arresting officer testified that after he stopped the vehicle and askedthe petitioner for his license and registration, he smelled a strong odor of alcohol emanating fromthe petitioner's mouth. In addition, the officer testified that the petitioner failed the four standardfield sobriety tests administered to him, including a preliminary breath test.
The petitioner's remaining contention is improperly raised for the first time on appeal.Rivera, J.P., Dillon and Iannacci, JJ., concur.
Brathwaite Nelson, J., dissents and votes to annul the determination, grant the petition, withcosts, and reinstate the petitioner's driver license, with the following memorandum, in whichChristopher, J., concurs: At a hearing held pursuant to Vehicle and Traffic Law§ 1194, the hearing officer is required to determine, inter alia, whether the policelawfully arrested the operator of a motor vehicle for operating such vehicle while under theinfluence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192(see Vehicle and Traffic Law § 1194 [2] [c]; Matter of Stewart v Fiala, 129 AD3d852, 852-853 [2015]). In order for an arrest to be lawful, the initial stop must itself be lawful(see People v De Bour, 40 NY2d 210, 222 [1976]; Matter of Stewart v Fiala, 129AD3d at 853). We respectfully disagree with our colleagues in the majority that the hearingrecord establishes that the petitioner was lawfully stopped.
At the hearing, the arresting officer testified that on the night in question he was on "DWIpatrol" on State Route 9. He was following the petitioner's vehicle when he observed the rightfront tire "cross[ ] the fog line and [go] off the shoulder . . . Then, while its signalwas on, right-hand signal, then the vehicle return [ed] back to its lane of travel." The respondent,New York State Department of Motor Vehicles Administrative Appeals Board, argues that thisconduct constituted a violation of Vehicle and Traffic Law § 1128 (a). Ourcolleagues in the majority conclude that this observation gave the officer reasonable suspicion tobelieve that the petitioner had violated Vehicle and Traffic Law § 1128 (a) and(d).
Vehicle and Traffic Law § 1128 (a) states, "A vehicle shall be driven as nearlyas practicable entirely within a single lane and shall not be moved from such lane until the driverhas first ascertained that such movement can be made with safety." The record here does notestablish a violation of section 1128 (a). The arresting officer did not testify that he believed themovement of the right front tire across the fog line was unsafe under the conditions present. Nordid he testify to any conditions from which it could be inferred that the movement could not bemade with safety. The movement that the officer observed happened so briefly that only the rightfront tire of the petitioner's vehicle traversed the fog line, while the turn signal was engaged inthat direction, followed by that tire returning to the lane of travel. No other tire crossed the line.The act that the officer observed suggests that the driver might have thought to pull off theroadway or to make a [*3]turn, but decided against it.Objectively, the act described was not unsafe, and the officer did not testify that he thoughtotherwise. A single tire briefly crossing the fog line once does not constitute a violation of theVehicle and Traffic Law and cannot provide a lawful predicate for the traffic stop (see Peoplev Davis, 58 AD3d 896, 898 [2009]; People v Kloosterman, 44 Misc 3d 1224[A], 2014 NY Slip Op51286[U] [Lockport Just Ct 2014]; People v Schoonmaker, 44 Misc 3d 1201[A], 2014 NY Slip Op50948[U] [Red Hook Just Ct 2014]; People v Kern, 38 Misc 3d 1217[A], 2013 NY SlipOp 50119[U] [Sheridan Town Ct 2013]; People v Luster, 35 Misc 3d 735 [Suffolk Dist Ct 2012]). Ofsignificance, the officer did not testify that the vehicle was weaving, traveling too fast or tooslow, or being driven in any other unsafe manner (cf. People v Tandle, 71 AD3d 1176 [2010]; People v Parris, 26 AD3d 393[2006]).
Although the respondent expressly relies only upon subdivision (a) of section 1128, themajority concludes that the petitioner also violated Vehicle and Traffic Law § 1128(d). That provision states, "When official markings are in place indicating those portions of anyroadway where crossing such markings would be especially hazardous, no driver of a vehicleproceeding along such highway shall at any time drive across such markings." There is noevidence in this record that the petitioner's vehicle drove across a marking indicating a portion ofthe roadway where crossing such marking would be especially hazardous. "The crossing of asolid white line is discouraged, but not prohibited" and does not violate Vehicle and Traffic Law§ 1128 (d) (People vShulman, 14 Misc 3d 129[A], 2006 NY Slip Op 52508[U], *1 [App Term, 2d Dept, 9th& 10th Jud Dists 2006]; see People v Kern, 38 Misc 3d 1217[A], 2013 NY Slip Op50119[U]; People v Bordeau, 21Misc 3d 1121[A], 2008 NY Slip Op 52117[U] [Essex County Ct 2008]; People v Fisher, 20 Misc 3d1136[A], 2008 NY Slip Op 51746[U] [Wappinger Just Ct 2008]).
Since the respondent failed to establish that the traffic stop was lawful, the challengeddetermination cannot be sustained. Because the stop was not justified at its inception, the Courtshould not reach the issue of whether there was probable cause for the arrest. Any allegedconduct by the petitioner that purportedly occurred after the vehicle was stopped "cannot validatean encounter that was not justified at its inception" (People v Moore, 6 NY3d 496, 498 [2006]; see Matter of Finn'sLiq. Shop v State Liq. Auth., 24 NY2d 647 [1969]; Vehicle and Traffic Law§ 1194 [2] [c]). Accordingly, we would annul the determination, grant the petition,and reinstate the petitioner's driver license.