| People v Eugenio |
| 2020 NY Slip Op 04318 [185 AD3d 1050] |
| July 29, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Enique Eugenio, Respondent. |
Melinda Katz, District Attorney, Kew Gardens, NY (Robert J. Masters, John M. Castellano,Joseph N. Ferdenzi, and Edward D. Saslaw of counsel), for appellant.
Janet E. Sabel, New York, NY (Ronald Alfano of counsel), for respondent.
Appeal by the People from an order of the Supreme Court, Queens County (Gene Lopez, J.),dated March 13, 2019, which, after a hearing, and upon renewal, granted the defendant's motionto suppress physical evidence and his statements to law enforcement officials.
Ordered that the order is affirmed.
During the late afternoon of November 12, 2017, the defendant was found unconsciousbehind the wheel of a parked car with the engine running, and was thereafter arrested. He wascharged with two counts of operating a motor vehicle while under the influence of alcohol, inviolation of Vehicle and Traffic Law §§ 1192 (2) and (3), respectively; twocounts of consumption or possession of an alcoholic beverage in a motor vehicle, in violation ofVehicle and Traffic Law § 1227; aggravated driving while intoxicated, in violationof Vehicle and Traffic Law § 1192 (2-a); and operating a motor vehicle while underthe influence of alcohol, in violation of Vehicle and Traffic Law § 1192 (1). Thedefendant moved to suppress physical evidence and his statements made to law enforcementofficials.
At a suppression hearing, a police officer testified that, while on patrol on November 12,2017, he observed an individual who seemed to be passed out behind the wheel of a parkedautomobile. The officer approached the driver's side of the vehicle, observed the defendanthunched toward the steering wheel, and noticed that the car was running. The officer repeatedlyknocked on the window of the vehicle to wake the defendant, who awoke in under one minute.The officer then asked the defendant to open the door and exit the vehicle. After the defendantexited the vehicle, the officer observed a plastic cup near the center console containing liquid anda bottle of scotch whiskey in the back seat. Moreover, the defendant exhibited several indicia ofintoxication and told the officer that he had consumed two 24-ounce beers, leading the officer toplace him under arrest.
After the hearing, the Supreme Court denied the defendant's motion to suppress physicalevidence and statements made after the defendant exited the vehicle. Thereafter, the defendantmoved for leave to renew his suppression motion. The Supreme Court granted the defendant'smotion and, upon renewal, suppressed the physical evidence and statements. The Peopleappeal.
An officer may approach a parked car for an objective, credible reason, not necessarilyindicative of criminality (see People v Harrison, 57 NY2d 470, 475-476 [1982]; People v Karagoz, 143 AD3d 912,913 [2016]). Here, the officer, upon observing the defendant unconscious behind the wheel of aparked vehicle with the engine running, had an objective, credible reason, not necessarilyindicative of criminality, for his initial approach of the defendant's vehicle, authorizing him torequest information from the defendant (see People v Ocasio, 85 NY2d 982, 985 [1995];People v De Bour, 40 NY2d 210, 223 [1976]). The officer did not, however, request anyinformation; he simply asked the defendant to exit the vehicle. Where, like here, a vehicle islawfully parked on the street and neither it nor its occupant is under any restraint, and the policehave no grounds to suspect the occupant of criminality at that point, requesting the occupant tostep out of the vehicle creates a new, unauthorized restraint (see People v Thomas, 275AD2d 276, 278 [2000]). Thus, an officer's directive to a defendant to exit a lawfully parkedvehicle must be based upon a "reasonable belief that [the] defendant was, in fact, 'involved incriminal acts' or that he 'posed some danger' to the [officer]" (People v Larkin, 62 Misc 3d 62, 66-67 [App Term, 2d Dept, 9th& 10th Jud Dists 2018], quoting People v Creary, 61 AD3d 887, 889 [2009]; see People vHollman, 79 NY2d 181, 185 [1992]).
Under the circumstances present in this matter, the fact that the defendant was sleeping in aparked vehicle with the engine running and was awakened by the officer knocking on thewindow gave the officer the right to request information from the defendant (see People vOcasio, 85 NY2d at 985; People v Hollman, 79 NY2d at 189-190). However, it didnot, without more, provide the officer with reasonable suspicion to restrain the defendant bydirecting him to exit the vehicle (see People v Morrison, 161 AD2d 608, 609 [1990];People v Larkin, 62 Misc 3d at 66-67; cf. People v Ocasio, 85 NY2d at 985).
Accordingly, we agree with the Supreme Court's determination, upon renewal, to grant thedefendant's motion to suppress physical evidence and his statements to law enforcement officials.Dillon, J.P., Hinds-Radix, Barros and Brathwaite Nelson, JJ., concur.