DECISION AND ORDER Defendant is charged with Driving While Intoxicated (V.T.L. §1192[3]) and related charges in connection with an incident that allegedly occurred on July 1, 2023. Defendant moves to suppress noticed statements, physical evidence, police observations, video recordings, photographs, and all other fruits of his arrest by police. The Prosecution opposes. On March 19, 2024, the Court conducted a combined Huntley/Mapp/Dunaway hearing. The Prosecution presented one witness at the hearing, Police Officer Cindy Chung. Defendant did not present any witnesses. After testimony was concluded, the Court heard oral arguments from both sides. The Court now makes the following findings of fact and conclusions of law. Findings of Fact Officer Cindy Chung has been employed by the New York City Police Department (NYPD) for five and a half years (hearing tr. at 28). She currently serves in the Domestic Violence Unit at the 72nd Precinct (id. at 28-29). At the time the arrest in the instant case, Officer Chung was assigned to Patrol (id. at 28). During her time at the police academy, Officer Chung received training on the basic signs of intoxication (id. at 29). Over the course of her career, Officer Chung has made approximately seventy-four arrests and has participated in over one hundred arrests (id. at 29-30). The Court credits Officer Chung’s testimony to the extent set forth below. On July 1, 2023, Officer Chung was working in uniform, in a marked vehicle with a partner, Officer Luo (id. at 30). At approximately 3:30 p.m., Officers Chung and Luo received notice of a 911 call alleging disorderly conduct by two intoxicated men at 725 42nd Street (id. at 31). On their way to the scene, Officer Luo learned further details about the call, specifically that there were two intoxicated males at the location, who were drinking and driving and almost hit the female 911 caller (id. at 31-32). The two men were said to be wearing construction clothes and sleeping in a green vehicle with a New York license plate, number KTJ1133 (id. at 32). Officer Chung did not personally hear the 911 call; her knowledge of the call was from the Improved Computer-Aided Dispatch system (ICAD) (id. at 56). At approximately 4:15 p.m., Officers Chung and Luo arrived at 725 42nd Street (id. at 32). Officer Chung observed a vehicle matching the description in the 911 call with license plate number KPJ1133 ((id. at 33). Officer Chung approached the driver’s side of the vehicle and noticed Defendant sleeping behind the wheel, a passenger also sleeping, the keys in the ignition, and two open bottles of Modelo in the center console ((id. at 33-34). The engine was idling, and the hazard lights were on (id. at 33). Officer Chung then went around to the passenger side, where the window was rolled down (id. at 34). She took a photograph of the interior of the vehicle from the passenger side (id.). The open bottles of Modelo still contained some beer at the time Officer Chung observed and photographed them (id. at 34, 64). While Officer Chung was on the passenger side of the vehicle, Officer Luo was on the driver’s side (id. at 35). Officer Luo opened the driver’s side door, removed the keys from the ignition, and woke Defendant (id.). Officer Luo asked Defendant if he had been drinking, and Officer Chung asked Defendant, “What are those?” referring to the beer bottles (id.). Officer Luo spoke to Defendant for approximately twenty seconds before ordering hm out of the vehicle (id. at 67). Defendant was immediately handcuffed after exiting the vehicle (id.). Officer Chung observed that Defendant’s clothing appeared to be work clothes, consisting of dirty jeans, dirty boots, and a slightly dirty shirt (id. at 37). Shortly after putting Defendant in the back of their car, Officers Chung and Luo went back to the vehicle, where they noticed more open beer bottles in a brown paper bag behind the driver’s seat (id.). Officer Luo took a photograph of the bottles (id.). Defendant was then transported to the 78th Precinct, where he was subjected to testing by Officer O’Neill of the Intoxicated Driver Testing Unit (IDTU) (id. at 38-39). During the hearing, Officer Chung’s body worn camera (BWC), IDTU video, and four photographs taken at the scene by Officers Chung and Luo were admitted into evidence. Conclusions of Law At a suppression hearing, the prosecution has the burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v. Hernandez, 40 A.D.3d 777 [2007]; see also People v. Berrios, 28 N.Y.2d 361 [1971]; People v. Wise, 46 N.Y.2d 321 [1978]). To evaluate the police conduct, the Court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v. DeBour, 40 N.Y.2d 210 [1976]). If the prosecution satisfies the initial burden of going forward, the defendant “bears the ultimate burden of proving that the evidence should not be used against him” (People v. Berrios, 28 N.Y.2d at 367). To approach a parked vehicle, police must have an objective credible reason (People v. Harrison, 57 N.Y.2d 470 [1982]; People v. Ocasio, 85 N.Y.2d 982, 984 [1995]). Such an intrusion must be predicated on more than a hunch, whim, caprice, or idle curiosity (People v. DeBour, 40 N.Y.2d at 217). Here, the police were responding to a 911 call in which the caller alleged that two men wearing construction clothes had been drinking and driving and nearly struck her, and that the two men were sleeping in their green vehicle with New York tag KTJ1133. Officer Chung’s testified that, when she and her partner arrived, they observed a green vehicle with a nearly identical New York tag (off by one letter) and in the same location provided by the 911 caller, in which two men were asleep. Their observations confirming the details of the 911 call established an objective credible reason to approach (see People v. Sanders, 224 A.D.2d 956 [1996] [holding that police had an objective credible reason to approach a stopped car based on the victim's description of her assailants and their vehicle]; People v. Warren, 124 A.D.3d 699 [2015] [holding that the police were justified in stopping the defendant based on a 911 call in which the caller described seeing a Black man in a red shirt in possession of a gun sitting in the driver's seat of a parked black car with two passengers, and where, when the police arrived, they saw the defendant, a male, wearing a red shirt, walking away from a black car parked in front of the address given by the 911 caller in which there were two passengers]). As such, the police behaved lawfully when they initially approached Defendant’s vehicle. Vehicle and Traffic Law §1227 provides, in relevant part, that “possession of an open container containing an alcoholic beverage, in a motor vehicle upon the public highways or right-of-way public highway is prohibited. Any operator or passenger violating this section shall be guilty of a traffic infraction.” Criminal Procedure Law §140.10(1)(a) states that a police officer may arrest a person for any offense when she has reasonable cause to believe that such person has committed such offense in her presence. For purposes of CPL §140, VTL §155 establishes that “for purposes of arrest without a warrant…a traffic infraction shall be deemed an offense.” Here, Defendant’s vehicle was parked on a public street. The Court credits Officer Chung’s testimony that she observed two open bottles of Modelo beer in the center console of Defendant’s vehicle immediately upon approaching the window. Her testimony is corroborated by her BWC and the photograph she took from the passenger window depicting the open bottles in plain view. Therefore, the police had probable cause to suspect Defendant of violating VTL 1227. Because the officers observed Defendant in possession of open containers of alcohol in the vehicle, they were authorized to order him out of the vehicle and arrest him (People v. DeBour, 40 N.Y.2d 210 [1976]; see People v. Van Buren, 4 N.Y.3d 640, 646 [2005]; People v. Boykin, 188 A.D.3d 1244 [2020] [holding that police were authorized to enter the vehicle and order the defendant out based on their observation of a cup of alcohol in plain view]; see generally People v. Martin, 50 A.D.3d 1169 [2008] [police had probable cause to arrest for VTL 1227 based on a cup of alcohol in plain view]; People v. Knight, 205 A.D.3d 928 [2022] [holding that police had probable cause to search for additional open containers when they observed an open bottle of tequila and an odor of alcohol in the defendant's vehicle]; but cf. People v. Eugenio, 185 A.D.3d 1050 [2020] [holding that where police observed the defendant sleeping in a car with the engine running, and where there was an open container of alcohol in the car that the police did not see until after the defendant got out, the police were not authorized to order the defendant out]; cf. People v. Contreras, 194 A.D.3d 835 [2021] [suppression appropriate where police opened a car door and attempted to remove the defendant from the vehicle, absent reasonable suspicion]). The police behaved lawfully when they opened the car door, ordered Defendant out, handcuffed him, and placed him under arrest.1 Regarding Defendant’s motion to suppress his statement, the Prosecution gave proper notice of one statement Defendant made while he was in the vehicle, which was captured on BWC.2 At a Huntley hearing, the prosecution has the burden of proving beyond a reasonable doubt that any statement made by the defendant was voluntary (People v. Huntley, 15 N.Y.2d 72 [1965]). Before a defendant is subjected to a custodial interrogation, law enforcement officials must advise him of his constitutional rights (Miranda v. Arizona, 384 U.S. 436 [1966]). “The standard for assessing a suspect’s custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave” (People v. Paulman, 5 N.Y.3d 122, 129 [2005]). Relevant factors in this analysis include the amount of time which the defendant spent with police, the manner in which his freedom was restricted, if at all, the location and atmosphere in which he was questioned, the degree to which he cooperated, whether he was advised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (People v. Nikac, 201 A.D.3d 955 [2022]). Statements made in response to police officers’ general inquires at the preliminary stage of investigation are not generally considered the product of interrogation (see People v. Johnson, 59 N.Y.2d 1014 [1983]; People v. Chestnut, 51 N.Y,2d 14 [1980]). “Roadside detentions have been held to be noncustodial and reasonable initial interrogation attendant thereto has been held to be merely investigatory” (People v. Mathis, 136 A.D.2d 746 [1988]; see People v. Brown, 104 A.D.2d 696 [1984]). Here, the police and Defendant had been interacting for less than a minute before Officer Chung pointed to the beer bottles and asked, “What are those?” Defendant was still sitting in the vehicle; the officers had not yet ordered him out. The question was investigatory in nature and occurred during the preliminary investigation. Under the circumstances, Defendant was neither in custody nor subjected to interrogation (see People v. Small, 212 A.D.3d 655 [2023]; People v. Gore, 117 A.D.3d 845 [2014]). Defendant’s motion to suppress the statement on Huntley grounds is denied. Finally, regarding Defendant’s motion to suppress the beer bottles recovered from the vehicle, Defendant argues that the Prosecution has not met their initial burden of establishing the legality of police conduct at the outset. Specifically, Defendant argues the Prosecution has not shown that there was probable cause to arrest, so fruits of the search and seizure should be suppressed. Warrantless searches and seizures are per se unreasonable unless they fall within one of the exceptions to the Fourth Amendment’s warrant requirement (People v. Sanders, 26 N.Y.3d 773 [2016]; Mapp v. Ohio, 367 U.S. 643 [1961]). The plain view doctrine is one such exception; “if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object’s incriminating nature is immediately apparent” (People v. Diaz, 81 N.Y.2d 106, 110 [1993]). In the instant case, the police had an objective, credible reason to approach the vehicle, as previously discussed in detail. The vehicle was parked on a public street. Upon approaching the vehicle, Officer Chung was able to see the bottles in the center console through the window. The bottles were clearly labeled with the name of the beer. Officer Chung immediately ascertained that the bottles were open. Officer Chung’s BWC and the photographs corroborate her testimony. The three conditions of the plain view doctrine are satisfied (People v. Knight, 205 A.D.3d 928 [2022]; see generally People v. Brooks, 23 A.D.3d 847 [2005]; cf. People v. Rodriguez, 211 A.D.3d 854 [2022] [holding that the plain view exception did not apply because the incriminating nature of the object was not immediately apparent]). The police behaved lawfully when they seized the beer bottles. Defendant’s motion to suppress the beer bottles is denied. Conclusion For the reasons set forth above, Defendant’s motion to suppress is denied in its entirety. This constitutes the order and decision of the Court. Dated: April 4, 2024
