DECISION AND ORDER On February 29 and March 1, 2018, a combined Mapp, Huntley, Dunaway, Ingle hearing was conducted. The People presented testimony from Police Officers Christian Gallardo and Mauricio Thomas. The defense did not present any witnesses. The Court finds both officers testimony to be inconsistent regarding the predicate for the stop of defendant’s vehicle. Therefore, this Court finds as a matter of fact that the officers’ testimony, particularly the testimony of Police Officer Christian Gallardo, does not support the predicate for the stop. Defendant’s motion to suppress is granted.Findings of Facts are as follows:It was alleged that on or about April 16, 2016 at approximately 10:45pm at the Southeast corner of East 152nd and Wales Avenue, Bronx New York, defendant Ivan Marzan was Operating a Motor Vehicle While Under the Influence of Alcohol or drugs pursuant to Vehicle and Traffic Law [VTL] §1193[3] and VTL 1192 [1]. In addition, it was alleged that defendant was Operating a Motor Vehicle Recklessly pursuant to VTL §1212.Officer Gallardo generally testified that he has been employed with the New York Police Department for approximately six years. The officer has made approximately seventy arrests over the course of his career, of which five to ten involved persons suspected of driving while under the influence of alcohol. The officer stated he was trained to identify potentially intoxicated persons, and he was trained to use the Portable Breathalyzer machine.Officer Gallardo testified, on April 16, 2016 he was assigned to the 40th precinct. His tour of duty was from 5:30pm to 2:05am. He testified further, on April 16, 2016 at approximately 10:45pm, he and Lieutenant Candrell were in a radio motor patrol (RMP) vehicle in the area of the Southeast corner of East 152nd Street and Wales Avenue in the Bronx. He described East 152nd Street as a one-way, public street, and was unable to recall if Wales Avenue was a one or two-way roadway. He stated it was dark, but there were lights in the area and no traffic.Officer Gallardo testified, he approached East 152nd Street and Wales Avenue while on routine patrol, and there was a “white Infinity that went through the stop sign as he was approaching the intersection, almost striking” his vehicle “causing him to stop short.” [Page 13, lines 24-25; Page 14, lines 1-2]. He testified further the stop sign was on 152nd Street, but does not recall the street where [defendant] was travelling. Officer Gallardo testified, the defendant was “to his right going the other way,” and the intersection was described as a “T”. [Page 14, lines 9-18]. He stated, the defendant almost struck his vehicle, and that he had to stop short to avoid an accident. He allowed the defendant to turn right in front of his vehicle, and then initiated his lights to pull defendant over. [Page 14, lines 22-25].Officer Gallardo testified, defendant’s vehicle was pulled over on Wales Avenue next to a fire hydrant. Prior to stopping defendant, the officer observed defendant throw a red plastic cup out of the passenger side window. The cup was allegedly recovered, but not vouchered as evidence, nor were any photographs of the cup taken. [Page 2, lines 1-10]. He asked defendant for his identification information, of which it was provided. After receiving the paperwork, he asked defendant, “if he had been drinking. I cannot remember if he said yes, but at some point, he told me that he had a shot of VSOP, and I believe he told me he had been at Sin City”. [Page 16, lines 17-20]. The officer testified he smelled alcohol on defendant’s breath, and his eyes were watery. [Page 16, line 25]. Thereafter, he called Officer Thomas to assist in this stop, because he had more experience with DWI arrests. The defendant remained in the vehicle, and was not under arrest at that time. Officer Gallardo testified, his gun remained in his holster, and his handcuffs were in his pouch. [Page 18 lines 4-5, 11-16].Officer Gallardo testified, he and Lieutenant Candrell, waited until Officer Thomas arrived. Upon arrival, Officer Thomas asked the defendant to step out of the vehicle. Officer Thomas offered the portable breath test (PBT). According to Officer Gallardo, defendant was not saying “yes” he would take it; and, defendant was not saying “no”. Defendant allegedly stated, “I don’t know, I could lose my job.” Officer Thomas testified, defendant “gave a lot of reasons to not take it but he wasn’t refusing.” [Page 21, lines 22-25]. At this point, defendant was not placed under arrest. Eventually, defendant Marzan submitted to the test, and after the test, he was placed under arrest by Officer Thomas.On cross examination, Officer Gallardo testified he was traveling on 152nd Street when he first noticed the white Infinity defendant was driving. Officer Gallardo does not recall the name of the street the Infinity was traveling on when he first noticed it, and he does not recall where the stop sign was located. [Page 28, lines 6-10]. He testified that “he [defendant] did not come to a complete stop and he did not slow down. It was not a rolling stop. He just went completely through the stop sign.” [Page 28, lines 15-17]. The officer does not recall whether the stop sign was located before, or after the cross walk. [Page 29, lines 12-14 and 19-20]. Officer Gallardo also testified that he pulled the [defendant] over, after the defendant turned onto Wales Avenue. [Page 30, lines 16-20].Officer Mauricio Thomas generally testified that he has been working as a New York City Police Officer for ten years. He has made approximately 60 to 80 arrests involving persons suspected of driving under the influence of alcohol. He was trained on how to use the portable breathalyzer machine, and had training on how to recognize someone who is intoxicated.On April 16, 2016, Officer Thomas was on duty with his partner, Police Officer Alverny Tavarez. His tour of duty was from 5:30pm to 2:30am. On that date, he received a call from Officer Gallardo, requesting that he come to East 152nd Street and Wales Avenue to perform the PBT on defendant. He arrived within a few minutes and defendant was inside the car. He noticed the defendant had bloodshot, watery eyes, and a pale face. He asked him to step out of the car and asked if he can perform a PBT. [Page 58, lines 1-9].The PBT test was conducted at 10:55pm. The reading of the test was.113. [Page 60, lines 14-18]. Thereafter, the defendant was placed under arrest for driving under the influence of alcohol. Defendant was transported to the 45th precinct. Office Thomas remained with the defendant the entire time at the 45th precinct. A chemical breath test (IDTU) was administered at 1:39am, indicating defendant’s blood alcohol content as.074. The IDTU test was recorded, and a DVD of the test was admitted into evidence.Officer Thomas did not witness the events leading up to the stop of defendant’s vehicle. He generally testified that there were a few stop signs around the arrest location, but was unsure as to which stop sign defendant is accused of going through. [Page 40, lines 20-23]. He testified that the arrest report indicates the offense location was on the southeast corner of Wales Avenue and East 152nd street. [Page 13, lines 10-14]. He clarified, after reviewing a map, the defendant’s arrest location was on the westside of Wales Avenue. [Page 16, lines 19-24]. Additionally, he testified that there is no mention in the arrest report of a near collision between Officer Gallardo and defendant’s vehicle. [Page 25, lines 2-6].Conclusions of Law are as follows:I — Stop of a VehicleA police officer may stop a vehicle on a public roadway when he or she has reasonable, or probable cause to believe the operator committed a traffic offense. See People v. Guthrie, 25 NY3d 130 (2015); also see People v. Ingle, 36 NY2d 413 (1975). After executing a lawful stop, the officer may order occupant(s) to exit the vehicle as a precautionary measure, even though the stop is based on a traffic infraction. See People v. Hensen, 21 AD3d 172 (1st Dept. 2005).In the instant matter, the stop of defendant’s vehicle was based upon Officer Gallardo’s observation of the defendant allegedly failing to come to a full stop at a stop sign, and driving recklessly. See Vehicle and Traffic Law §1172 and §1212. This Court finds the officer’s testimony insufficiently demonstrated the predicate for stopping defendant’s vehicle, as he did not establish the location of the stop sign defendant is alleged to have failed to stop. Therefore, this Court does not find that Officer Gallardo had reasonable, or probable cause to believe defendant failed to stop at a stop sign.II — Probable Cause for the ArrestA police officer has probable cause to arrest a person when it appears to be “at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice. See People v. Vandover, 20 NY3d 235 (2012), quoting People v. Carrasquillo, 54 NY2d 248, 254 (1981); also see Dunaway v. New York, 442 US 400 (1979). A police officer has probable cause to make an arrest for a Vehicle and Traffic Law §1192 offense, if it is more probable than not that the person being arrested exhibits, “actual impairment, to any extent, of the physical and mental abilities which a person is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” See People v. Fratangelo, 23 NY3d 506 (2014), quoting People v. Cruz, 48 NY2d 419 (1979).This Court does not find that probable cause existed to arrest the defendant for driving or operating a motor vehicle while intoxicated, as Officer Gallardo was unable to establish the location of the stop sign and the predicate for the stop of defendant’s vehicle was not established through his testimony. Therefore, any observations of defendant’s indicia of intoxication are the fruits of the poisonous tree, and must be suppressed.III — Admission of the StatementsCriminal Procedure Law §60.45 states, evidence of a written or oral confession, admission, or other statement made by a defendant with respect to his or her participation or lack thereof in the offense(s) charged, may not be received in evidence in a criminal proceeding if such statement was involuntarily made. Also see People v. Huntley, 15 NY2d 72 (1965).On March 1, 2018, the People and defendant’s counsel stipulated to the suppression of defendant’s statements made at the 45th precinct recorded on the IDTU DVD admitted into evidence. Additionally, defendant’s statement to Officer Gallardo, “I HAD 4 BEERS AND 1 SHOT OF V.S.O.P. I WORK FOR THE CITY. I AM A TRAIN OPERATOR,” is suppressed, as the predicate for the stop of defendant’s vehicle was not established.IV — Admission of the Portable Breath Test ResultsResults from a breathalyzer test are considered suppressible evidence. See People v. Pamulo, 22 NYS3d 138 (Crim Ct., New York County 2015); also see People v. Johnson, 511 NYS2d 773 (Crim. Ct., Queens County 1987). The officer’s lack of a basis to stop a vehicle, or probable cause to believe defendant committed a Vehicle and Traffic Law §1192 offense, constitutes a legal basis for suppression of a breathalyzer test result, as fruit of the poisonous tree. See Mapp v. Ohio, 367 US 643 (1961).On March 1, 2018, the People and defendant’s counsel stipulated to the suppression of defendant’s blood alcohol content reading of.074 during the IDTU examination. Moreover, as Officer Gallardo did not establish a basis to stop defendant’s vehicle, defendant’s blood alcohol content reading of.11 during the portable breathalyzer test (PBT) administered by Officer Thomas is suppressed, as fruit of the poisonous tree.ConclusionDefendant’s motion to suppress is granted on grounds that, as a matter of fact, the predicate or legal basis for the stop of defendant’s vehicle was not established.The foregoing constitutes the decision and order of the Court.Dated: April 24, 2018Bronx, New YorkSO ORDERED:
