DECISION AND ORDER A bench trial was held in this proceeding charging the defendant with one count of Driving While Intoxicated (VTL §1192(3)), Obstruction of Governmental Administration in the Second Degree (PL §195.05), Resisting Arrest (PL §205.30), and two counts of Disorderly Conduct (PL §240.20 [2] & [3]). At trial, Mount Vernon Police Sergeant Mario Stewart, Police Officer Conner Hunt and Police Officer Natasha Marquez testified for the prosecution. Defense moved for a trial order of dismissal. The motion was denied. Defense entered certified medical records into evidence but did not call any witnesses. FINDINGS OF FACT The credible evidence presented at the trial established that on June 22, 2019 at approximately 4:00am, Mount Vernon Police Officers were in the vicinity of 159 Gramatan Avenue, Mount Vernon, NY to disperse the crowds following several bar dismissals in that area. Sergeant Mario Stewart, a 16 year veteran of the Mount Vernon Police Department, testified that he has training in the recognition of intoxicated persons and participated in over 100 arrest involving intoxication by alcohol. Sergeant Stewart also testified that he is a Certified Breath Test Operator. On June 22, 2019 Sergeant Stewart was working the 11:00pm to 7:00am shift as Patrol Supervisor. He responded to the Gramatan Avenue area to supervise bar dismissal. Sergeant Stewart testified that at least five officers were in the two block radius and were tasked with crowd control, making sure no fights broke out, and dispersing groups and cars in the area. Officer Stewart testified that street parking is prohibited after 4:00am to allow for street sweeping. He directed officers to issue a summons to vehicles still parked on Gramatan Avenue. Sergeant Stewart testified that he observed several vehicles were not moving, including a blue Honda Accord parked directly across from his police vehicle. Sergeant Stewart observed the defendant, Kenneth Mason in the driver’s seat of the blue Honda and a passenger in the front passenger seat. The officer approached the vehicle and observed that the occupants appeared to be eating. He observed that the engine was running, lights were on and keys were in the ignition. He instructed the defendant that he had to move the vehicle out of the area to allow for commercial cleaning of the streets. Defendant did not move after several requests and was issued a traffic summons. Sergeant Stewart testified the defendant became very irate and started yelling and cursing. The officer testified that after the defendant refused to move he asked him to step out of the vehicle. He maintains that the defendant initially refused to exit the vehicle until he saw the other officers approaching. Sergeant Stewart testified that when defendant exited the vehicle he observed that he was unstable on his feet, had a strong odor of alcohol on his breath and had glassy eyes. The officer testified that the defendant continued to act belligerent and was placed under arrest for Driving While Intoxicated and Disorderly Conduct. A video of the police interaction was played in court. The officer maintains that the video clearly demonstrates that the defendant resisted arrest after he gave a command to the officers to place him under arrest. Defendant was transported to Mount Vernon Police Headquarters. Defendant refused to submit to a chemical test. Sergeant Stewart testified that he instructed the officers to perform Field Sobriety Tests at the station because he did not think they could be conducted at the scene due to the defendant’s behavior. He did not observe the officer conduct the field sobriety tests. Police Officer Conner Hunt also testified for the People. Officer Hunt has been employed by the Yonkers Police Department for the past three years. Prior to this Officer Hunt was employed by the Mount Vernon Police Department for one and half years. The officer testified that he received his police training at the Westchester Police Academy in 2018. He also received de-escalation training and DWI training. He testified that he has made one DWI arrest as of June 22, 2019 and assisted with a few alcohol intoxication arrests. On June 22, 2019 Officer Hunt was working the midnight to 8:00am shift in Mount Vernon. At 4:00am he responded to 96 Gramatan Avenue and East Sidney Avenue to disperse a bar after closing time. The officer testified that all bars and restaurants close at 4:00am. When he arrived at the location he observed large groups of people congregated outside on Gramatan Avenue and a parked car. The officer testified that no parking regulations go into effect at 4:00am. He observed other officers issuing the driver of a parked Honda Accord a traffic summons and he approached the vehicle to assist. As the officer approached he observed two males sitting in the vehicle and they appeared to be eating. He testified that the defendant was seated on the driver’s side and the other male was sitting in the front passenger’s seat. Officer Hunt testified that after the summons was issued defendant refused to leave, became belligerent and started yelling profanities. Sergeant Stewart ordered the defendant to step out of the vehicle. At this time Officer Hunt was standing near defendant’s vehicle. He testified that he smelled alcohol on defendant and observed glassy eyes and swaying back and forth. Officer Hunt testified that the defendant continued to yell and cause a scene. Defendant was placed under arrest for Driving While Intoxicated and Disorderly Conduct at the direction of Sergeant Stewart. Officer Hunt testified that while attempting to place defendant under arrest, defendant stiffened his arms, clenched his fists together, clasped his hands together as they were trying to place his arms behind his back. After the defendant was arrested, Officer Hunt transported the defendant back to Mount Vernon Police Headquarters. Officer Hunt testified that the defendant continued to act belligerent in the car. Once at police headquarters the defendant refused to get out of the car and continued to yell. Officer Hunt called for assistance to remove the defendant from the vehicle. Once defendant was removed from the vehicle and placed in the cell block, Officer Hunt asked the defendant to perform three field sobriety tests and defendant obliged. The officer testified that he received a four day training at the police academy and had never administered the test prior to June 22, 2019. He first asked the defendant to perform the Horizontal Gaze Nystagmus test. During the HGN test the officer asked the defendant to look at the pen in front of his face and follow it with his eyes horizontally and vertically without moving his head. The officer testified that the defendant failed the HGN test. The officer determined that the defendant failed this test by involuntarily jerking his pupils when trying to look from side to side. He then asked the defendant to perform the Walk and Turn test. During this test the officer asked the defendant to take ten heel and toe steps in a straight line, turn around, and walk back heel to toe in a straight line. The officer testified that he also physically showed the defendant how to take the test. Officer Hunt determined that the defendant failed the test because defendant failed to take heel to toe steps and could not walk in a straight line. Finally, he asked the defendant to perform the One Legged Stand test. During this test the officer asked the defendant to stand on one leg for a duration of time and raise the other leg six inches off the ground. The officer determined that the defendant failed the test because he did not raise his foot above six inches and put his foot down before he was instructed to do so. Based upon his observations the officer determined that the defendant was intoxicated. The officer testified that he did not issue DWI refusal warnings to the defendant. Officer Natasha Marquez has been employed by the Peekskill Police Department for the past nine months. Prior to this Officer Marquez was employed by the Mount Vernon Police Department for three and one half years. She received her police training at the Westchester County Police Academy in 2018, including de-escalation and DWI training. As of June 22, 2019 she has made four DWI arrests and assisted with ten DWI arrests. On June 22, 2019 she was working the midnight to 8:00am shift. At 4:00am, as part of her patrol duties, she responded to the area of Gramatan Avenue in Mount Vernon, NY for bar dismissal. Officer Marquez testified that officers respond to the area between 20 Gramatan Avenue and 200 Avenue to make sure that everyone exiting the bars disburses and leaves the area. Officers are also tasked with clearing the streets of vehicles as there is no street parking after 4:00am. When Officer Marquez arrived on the scene she saw a lot of people exiting the bars. The officers instructed them to get into their vehicles and go home. Officer Marquez testified that there were several vehicles still in the area. She observed fellow officers issuing summonses for unattended vehicles. Officer Marquez testified that as she was clearing the area she heard shouting and observed Sergeant Stewart and a male in a verbal altercation. Officer Marquez testified that the male, identified as the defendant, was standing close to Sergeant’s Stewart’s face. She walked towards them with fellow officers. She heard the sergeant tell defendant to leave the area but the defendant refused. Sergeant Stewart advised the officers that the defendant was to be placed under arrest for Disorderly Conduct and DWI. The officer testified that the area has some residential homes and apartments above the commercial buildings. Officer Marquez testified that she observed that the defendant was staggering and swaying. She also observed that the defendant smelled like alcohol. As they were attempting to place defendant under arrest, defendant clasped his hands in front of his body. Defendant refused to put his hands behind his back. The officer testified at this time the defendant was taken to the ground using defensive tactics by at least three officers. After defendant was placed under arrest, Officer Hunt transported defendant back to police headquarters. Officer Marquez testified that once back at the station she observed the defendant in the backseat of Officer Hunt’s vehicle spitting and cursing. She maintains that the defendant refused to get out of the vehicle. The officers called Emergency Services Unit (ESU) to assist in extracting the defendant from the vehicle. Officer Marquez testified that Officer Hunt then administered Standardized Field Sobriety Tests to defendant and that he failed all of them; she did not observe Officer Hunt administer the tests. Officer Marquez issued DWI refusal warnings to the defendant at 5:10am while he was in the cell block. She testified that the defendant stated no and asked to go to the hospital. She did not attempt to read them again. She testified that Officer Hunt and Officer Zalensy transported the defendant to the hospital. Based on her observations she believed the defendant was highly intoxicated. CONCLUSIONS OF LAW Driving While Intoxicated VTL §1192(3) provides that “[n]o person shall operate a motor vehicle while in an intoxicated condition”. The trial testimony established that when Sergeant Stewart was on the scene, he observed the defendant’s car parked on the street after no parking hours. The officer asked the defendant to leave and defendant refused to disperse. As Sergeant Stewart, Officer Hunt and Officer Marquez were engaging with the defendant at the scene and at police headquarters, they smelled the odor of alcohol on defendant’s breath, observed glassy eyes, slurred speech and swaying as he stood, the indicia of intoxication (People v. Caravello, 32 Misc 3d 133 (A) [2d Dept 2011]. The officer further testified that the engine was running, keys were in the ignition and lights were on. “It is well established that ‘operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that the defendant was observed driving the car” (Id. (citing People v. Alamo, 34 NY2d 453, 458 [1974]). After defendant was placed under arrest, he was transported to police headquarters. At the police station, defendant agreed to take three standardized field sobriety tests. Officer Hunt credibly testified that he administered the tests according to the SFST administrative guide as submitted into evidence and testified as to how defendant failed each test. Accordingly, based on the credible testimony and evidence presented at trial the Court finds the defendant guilty of Driving While Intoxicated. Obstruction of Governmental Administration in the Second Degree The Court also finds that the People established the defendant obstructed governmental administration. “A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act…”(PL 195.05). All of the officers testified that no parking regulations go into effect at 4:00am in the Gramatan Avenue area to allow for street cleaning. Sergeant Stewart directed the defendant to leave the location, but defendant refused the lawful order to disperse. Testimony that defendant was belligerent, uncooperative, and refused a direct request that he leave the area while the officers tried to clear the area for street cleaning was sufficient to establish the crime of second degree obstructing governmental administration. Accordingly, the Court finds the defendant guilty of Obstruction of Governmental Administration in the Second Degree. Resisting Arrest The Court also finds that the People established the defendant resisted arrest. The law provides that “a person is guilty of Resisting Arrest when he or she intentionally prevents or attempts to prevent a police officer from effecting an authorized arrest of himself” (P.L. §205.30). The officers credibly testified that after advising the defendant he was being placed under arrest for Driving While Intoxicated and Disorderly Conduct, the defendant clenched his hands and fists in front of him and refused to put his hands behind his back. Officer Marquez testified that the officers had to use defensive tactics to bring defendant to the ground before they could handcuff him. Accordingly, the Court finds the defendant guilty of resisting arrest (People v. Caravello, 32 Misc 3d 133(A) [2d Dept 2011]). Disorderly Conduct (Unreasonable Noise and Obscene Language) The Court finds that the People failed to prove beyond a reasonable doubt the two disorderly conduct charges, unreasonable noise and obscene language. “A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: (2) He makes unreasonable noise; or (3) In a public place, he uses abusive or obscene language….” “It must be kept in mind that the prime purpose of the statute (Penal Law, §240.20) is to preserve public order and peace. To sustain a conviction the offensive conduct must be public in nature and must cause inconvenience, annoyance or alarm to a substantial segment of the public, or be of such nature and character that it would appear beyond a reasonable doubt that the conduct created a risk that a breach of the peace was imminent (People v. Hill, 60 Misc. 2d 277, 280 (Yates Cty Ct. 1969) [(citing People v. Chesnick, 302 NY 58; People v. Szepansky, 25 Misc 2d 239; People v. Balnis, 14 Misc 2d 928). The term “unreasonable noise” means a noise of a type or volume that a reasonable person, under the circumstances would not tolerate’” (Provost v. City of Newburgh, C.A.2 (NY), 262 F.3d 146 (2001) (citing People v. Bakolas, 59 NY2d 51, 449 N.E.2d 738, 462 N.Y.S.2d 844 (1983)). All of the officers testified that the defendant was yelling, cursing and acting belligerent when he was asked to leave the area. However, no one testified to the specific “abusive or obscene” language defendant used. Also, none of the witnesses testified that a crowd gathered or was drawn to the scene due to the defendant’ s yelling or cursing at the scene. The officers merely testified that the area had some residential homes. There was no testimony that residents were looking out of their windows or exited their homes to see the commotion. Moreover, there was no testimony that the crowd already on the scene refused to disperse because they were drawn to the argument between Sergeant Scott and the defendant. Accordingly the Court finds the defendant not guilty on the two counts of Disorderly Conduct. After nonjury trial the Court finds the defendant guilty of Driving While Intoxicated, Obstruction of Governmental Administration and Resisting Arrest, and not guilty of Disorderly Conduct. This constitutes the Decision and Order of This Court. Dated: April 6, 2023
