Defendant is charged by superceding misdemeanor information with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL 511 §[2]), Driving While Intoxicated (VTL §1192 [3]), Operation While Registration or Privilege is Suspended or Revoked (VTL §512), Driving While Intoxicated (VTL §1193 [3], and Consumption or Possession of Alcoholic Beverage in Motor Vehicle (VTL 1227 [1]). A Dunaway/ Huntley/ Mapp hearing was commenced on June 3, 2021 and concluded on August 5, 2021. At the hearing, Lieutenant Vincent DellaMura testified that he has been employed by the Mount Vernon Police Department for over nineteen years. On January 12, 2020, he was working the 3:00pm — 11:00pm shift as a street supervisor for the Patrol Division. At approximately 9:00pm he was in the vicinity of South Fulton Avenue and East Third Street in Mount Vernon, NY when he observed a Jeep Cherokee stopped at the traffic light. He testified that when the light turned green, the vehicle did not move. Other cars behind the vehicle began honking for the driver to move. Lieutenant DellaMura approached the vehicle and observed that the defendant was in the driver’s seat, with his foot on the brake and appeared to be sleeping. The officer banged his flashlight on the window. Defendant woke up and the officer observed that he had bloodshot eyes. The officer testified that he could not smell any alcohol due to a sinus infection. The lieutenant asked the defendant for his license and registration and the defendant began fumbling around looking for documents. Defendant was ordered to step out of the vehicle. Lieutenant DellaMura radioed the traffic stop in and Officer Sordellini responded to the scene. He testified that Officer Sordellini administered the field sobriety tests. Defendant was placed under arrest after failing the field sobriety tests. He further testified that Miranda warnings were not issued at the scene. Police Officer Christopher Sordellini testified that on January 12, 2020 he was employed with the Mount Vernon Police Department. He was working the evening shift. At 9:00pm he received a call that Lieutenant DellaMura was conducting a traffic stop at the intersection of South Fulton Avenue and East Third Street in Mount Vernon, NY. When he arrived to the location he observed the lieutenant speaking to the defendant. Defendant was ordered to step out of the vehicle. Officer Sordellini observed that the defendant had blood shot eyes and smelled like alcohol. Defendant was then asked to perform field sobriety tests, which included the “horizontal gaze nystagmus”, “walk and turn” and “one-legged stand” tests. Officer Sordellini stated that he received training at the police academy on administering field sobriety tests and was trained to recognize evidence of intoxication, including slurred speech, glassy eyes and the odor of alcohol. He testified that the defendant had a “jerky pursuit” when he performed the horizontal gaze nystagmus test and thus failed the test. He testified that the defendant failed the walk and turn test when he missed three steps and did not turn correctly The defendant failed the one-legged stand test as well, as he swayed while trying to maintain his balance. Defendant refused the breathalyzer. The officer asked the defendant if he had any alcohol. The defendant allegedly stated that he had a little to drink and was going from Mount Vernon to the Bronx. The officer testified that he asked the defendant if he knew that his license was suspended. The officer testified that defendant informed him that he knew that his license was suspended. He then placed the defendant under arrest. During an inventory search of the vehicle the officer recovered one bottle of New Amsterdam Vodka. Conclusions of Law Based upon the credible testimony at the hearing, the court finds that probable cause existed for the defendant’s arrest. When evaluating police conduct, courts “must determine whether the action taken was justified in its inception and every subsequent stage of the encounter” (People v. DeBour, 40 NY2d 210, 222 (1976)). The Court finds the testimony given at the hearing by Lieutenant DellaMura and Officer Sordellini to be credible. Lieutenant DellaMura’s observations of the defendant’s violation of the Vehicle and Traffic Law, failing to proceed through a green traffic light, provided him with a lawful basis for approaching the vehicle. The temporary roadside detention after approaching the defendant’s vehicle for the observed traffic infraction was permissible and non-custodial in nature (People v. Meyers, 1 AD3d 382 (2nd Dept. 2003); People v. O’Reilly, 16 Misc 3d 775 (Dist Ct Suff Cty 2007)). Once lawfully detained, Lieutenant DellaMura was permitted to conduct a reasonable initial investigation in which Miranda warnings were not required (People v. Mathis, 136 AD2d 746 (2nd Dept. 1988); People v. Burns, 16 Misc 3d 1129(A)(Dist Ct Suff Cty 2007). It was during the initial investigation that the officer observed the defendant was sleeping behind the wheel and had bloodshot eyes. PO Sordellini’s observations during his initial investigation included defendant’s bloodshot eyes and the odor of alcohol on his breath. PO Sordellin’s observations of the defendant when he spoke to him, coupled with the defendant’s statements and his failure of three standard field sobriety tests, were sufficient to provided PO Sordellini with reasonable cause to believe that defendant had been driving in violation of Vehicle and Traffic Law §1192 and therefore, provided probable cause to place the defendant under arrest for being in violation of VTL §1192(3). See People v. O’Reilly, 16 Misc 3d 775 (Dist Ct Suff Cty 2007). Defendant was searched incident to a lawful arrest. The bottle of vodka found during the inventory search of his vehicle is not subject to suppression (People v. Morales, 189 AD3d 1464 (2d Dept. 2020)). Turning to defendant’s Huntley motion, defendant moves to suppress his statements on the ground they were involuntarily made. The statements made by the defendant, to the effect that he had a little to drink and was driving from Mount Vernon to the Bronx occurred at the scene in response to a question by Officer Sordellini as to whether he had been drinking. An individual is deemed to be in custody when he has been “deprived of his freedom of action in any significant way” (People v. Turkenich, 137 AD2d 363 (2d Dept 1988) citing Miranda v. Arizona, 384 US 436). In deciding whether the accused was in custody prior to being interrogated, the subjective beliefs of the accused are not determinative. The appropriate test is “what a reasonable [person], innocent of any crime, would have thought had he been in the [accused's] position” (People v. Yukl, 25 NY2d 585, 589 (1969)). Generally, the determination of whether an interrogation is custodial is an issue of fact (People v. Williamson, 51 NY2d 801 (1980); People v. McIntyre, 138 AD2d 634 (2d Dept 1988)).0 “A temporary roadside detention for the investigation of traffic-related matters, including suspected driving while intoxicated offenses, are generally non-custodial in nature and encompass limited questioning appropriate to such investigations and the administration of performance tests without the necessity of the rendering and waiver of the Miranda warnings” (People v. MacKenzie, 9 Misc 3d 129A [2d Dept 2005]; see also People v. Mason, 157 AD2d 859 [2d Dept 1990]). In this case, the defendant stated he only had a little to drink after Officer Sordellini approached him with what was a routine inquiry after observing the defendant’s bloodshot eyes. Since the defendant was not in custody at the time of the officer’s initial approach and the limited questions asked of him were of an investigatory nature, the Court finds that the defendant’s statement is not suppressible (People v. Hanna, 185 AD2d 482 [3d Dept 1992]). As such, the defendant’s statements at the scene and the observations of the defendant by the officers, including his performance on the standard field sobriety tests, are not subject to suppression. This constitutes the Decision and Order of this Court. Dated: September 13, 2021
