DECISION AND ORDER The defendant is charged with one count of driving while intoxicated, a violation of Vehicle and Traffic Law §1192.3, as a felony, in connection with an incident that allegedly occurred on May 30, 2021. Pursuant to the stipulations in lieu of motions executed by this Court (J. Fink) on December 20, 2023, the Court conducted an in camera review of the grand jury minutes and issued a decision upon review of those minutes on March 12, 2024 wherein the Court found the evidence presented was legally sufficient to support the crime charged. CPL §210.30. Further, the grand jury proceeding was not defective; proper legal advice and adequate instructions were given by the assistant district attorney. CPL §210.35(5) and 190.25(6). Finally, this Court found indictment conforms to the requirements of CPL Article 200. On June 6, 2024 this Court conducted a combined Huntley, Dunaway, Refusal, Thomas, Johnson hearing to determine whether probable cause existed for the arrest and whether any statements, evidence of the defendant’s refusal to submit to a chemical test, or observations made by the police should be suppressed. At the conclusion of the hearing, this Court issued its findings of fact and conclusions of law. Those findings of fact and conclusions of law are incorporated by reference into this supplemental decision. When the Court finished issuing its ruling after the hearing, the People asked to be heard with respect to a portion of statement #3 on the People’s 710.30 notice. Specifically, the People argued that the portion of statement #3 that this Court had ordered suppressed must be admissible under the rule established by the Court of Appeals in People v. Merrill, 87 N.Y.2d 948 (1996) Although familiar with the holding of the Court of Appeals in Merrill, this Court nevertheless invited the People and the defendant provide authority that either side believed to be controlling on the issues raised in the hearing. PEOPLE’S APPLICATION REGARDING STATEMENT #3 The People, in opposition to this Court’s ruling from the bench that the vast majority of statement three would be suppressed, points to People v. Merrill, supra, but the Court disagrees with its applicability to the case at bar. As the defendant correctly points out, that case is unrelated to the arguments made at the hearing as it concerns preclusion based on a defect in the 710.30 notice. Here, however, the defendant argued that the statement in question1 should be suppressed because it was not elicited by the witness — and not precluded because of a defect in the notice provided by the People. The Court agrees. After review of the authority supplied by both the People and the defendant the Court sees no basis to disturb its ruling issued on the record at the conclusion of the hearing with respect to Statement #3. DEFENDANT’S APPLICATION IN LIGHT OF SERRANO After both the June 6, 2024 hearing and their submission of a July 8, 2024 memorandum of law, the Defendant submitted to the Court and to the People a “supplemental memorandum of law” on August 12, 2024 in light of People v. Serrano, 229 A.D.3d 642, which was issued by the Appellate Division, Second Department on July 17, 2024. In the supplemental memorandum of law the defendant argues that Serrano dealt with “nearly identical facts” to this instant case, and that since the Appellate Division found that “the People failed to establish…that the police intrusion in this matter was narrowly tailored to address the perceived need for assistance” in Serrano, this Court should rule similarly that the People failed to establish the legality of the initial police contact in this case and suppress “all the fruits of the detention.” The Serrano Case While the defendant contends Serrano and the case at bar have “nearly identical facts,” the reality is that Serrano is markedly different from this case. In Serrano, “the defendant, who was driving westbound on Montauk Highway, flashed his vehicle’s high beams multiple times at a marked patrol car…which was driving ahead of the defendant’s vehicle. Upon witnessing the flashing high beams, the officers believed that the defendant was trying to flag them down for help and pulled the patrol car onto the shoulder of the road. The defendant did not pull over but continued driving past the patrol car. Confused, the officers followed behind the defendant’s vehicle for a few feet and then activated the patrol car’s turret lights to pull over the vehicle ‘to see if the motorist was in distress for some reason.’ After the defendant pulled over onto the shoulder of the highway, [the officer who was not called to testify during the hearing] asked him why he had flashed his lights and if everything was okay.” Id. at 643 The testifying officer did not hear defendant’s response and that the defendant did not appear to be in distress. Based upon the defendant supplying a birth date “approximately 20 years earlier than his actual birth date” and the defendant appearing to look much younger than the age he claimed to be, the defendant was asked to step out of the vehicle. It was only at that point when the officers noticed the defendant appeared to be intoxicated. The Serrano Court, noting that the Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” then examined whether the “community caretaking function” of police was applicable and appropriate. People v. Doll, 21 NY3d 665, 670 (2013); see Cady v. Dombrowski, 413 US 433, 441 (1973). The community caretaking function recognizes that police do not just fight crime, but “perform varied public service roles, including protecting citizens from harm.” People v. Rodriguez, 77 AD3d 280, 292 (2010) see People v. De Bour, 40 NY2d 210, 218. The police’s community caretaking function is “‘totally divorced from the detection, investigation, or acquisition of evidence’ of criminal conduct.” People v. Hinshaw, 35 NY3d at 438, quoting Cady v. Dombrowski, at 441 In May of this year, the Court of Appeals developed a two-prong test to determine whether the police may stop an automobile in an exercise of their community caretaking function. People v. Brown, ___ NY3d ___, 2024 NY Slip Op 02765 First, the officers must point to specific, objective, and articulable facts that would lead a reasonable officer to conclude that an occupant of the vehicle is in need of assistance. Second, the police intrusion must be narrowly tailored to address the perceived need for assistance. Once assistance has been provided and the peril mitigated, or the perceived need for assistance has been dispelled, any further police action must be justified under the Fourth Amendment and Article I, section 12 of the State Constitution…For an automobile stop, this means that any continuation of the stop beyond what is necessary to ascertain whether an occupant needs aid requires at least reasonable suspicion of criminal activity Under this backdrop, the Second Department ultimately concluded that while the first prong of the two-prong test developed in People v. Brown had been met, the People failed to establish the second one. The Court cited three shortcomings with the second prong: (1) no evidence as to the defendant’s response to the inquiry about why he had flashed his headlights and to whether everything was okay; (2) testimony that the defendant did not appear to be in distress; and (3) nothing in the record indicating that the officers had suspicions that the defendant was intoxicated until after they determined that he had lied about his date of birth and asked him to exit the vehicle. Thus the Court found that People had not demonstrated that the continued questioning of the defendant was an intrusion “commensurate with [any] perceived need for assistance” and dismissed the indictment. Four-Tiered Method for Police Stops The Court of Appeals has established a four-tiered method for evaluating the propriety of police-initiated street encounters (People v. DeBour, 40 NY2d at 223). Level one allows the police to request information based on an objective, credible reason, not necessarily indicative of criminality Id. Level one requests for information include only basic, nonthreatening questions, such as identity, address, or destination. People v. Hollman, 79 NY2d 181, 185 (1992). Level one also permits an officer to approach a parked vehicle. People v. Eugenio, 185 AD3d 1050, 1051 (2020). Level two is the common-law right of inquiry based on a founded suspicion that criminal activity is afoot. Debour at 223. Pointed questions that would lead the person approached to reasonably believe he or she is suspected of some wrongdoing require level two suspicion. People v. Hollman, 79 NY2d at 185. Level three authorizes the police to forcibly stop and detain a person if the police have a reasonable suspicion that the person was involved in a crime. DeBour at 223. Finally, level four permits police to arrest a person based on probable cause that he or she has committed a crime Id. The “Wellness Check” on May 30, 2021 Here, Investigator (then Trooper) Becker testified that he “was notified by Trooper Rush, who was also working, that there was a vehicle that was stopped on the right shoulder of the Meadowbrook State Parkway northbound, north of Exit M6, and that there was an individual behind the wheel of the vehicle…” and that he was called to assist with a wellness check. He testified that the roadway was a little wet as it had rained earlier. Investigator Becker further testified that when he arrived to the location he found a scene that matched the situation described over the radio with a car on the right shoulder of the Meadowbrook State Parkway and an individual behind the wheel. Investigator Becker pulled his car behind Trooper Rush’s car, which was parked behind the defendant’s car. Investigator Becker noted that both the defendant and Trooper Rush were in their respective vehicles when he arrived and that both he and Trooper Rush approached the defendant’s vehicle together as part of a “welfare check,” with Investigator Becker approaching the defendant’s driver’s side door and Trooper Rush approaching the defendant’s passenger side door. (Hearing minutes, pg. 9) He further testified on cross-examination that “the rear emergency lights were on just to warn motorists that were coming northbound that we were right there.” (Hearing minutes, pg. 55-56) Investigator Becker testified that while he approached the defendant’s vehicle, which was running, he saw the defendant (who was behind the wheel and the sole occupant of the vehicle) throw a red solo cup out of the passenger side window. Additionally, Investigator Becker testified that when he began to speak with the defendant — who was still in the driver’s seat behind the wheel with the car running — he detected the odor of an alcoholic beverage emanating from the vehicle, and noticed the defendant had bloodshot watery eyes and slurred speech. While the People chose not to call Trooper Rush to testify, “hearsay evidence is admissible to establish any material fact” at a pretrial suppression hearing. CPL §710.60(4); see People v. Mitchell, 124 AD3d 912 (2015) Thus, “[a] police witness at a suppression hearing may establish probable cause by personal knowledge, as well as by information supplied by fellow officers.” People v. Edwards, 95 NY2d 486, 491; People v. Petralia, 62 NY2d 47 (1984). Where the knowledge of the imparting officer is based on his or her firsthand observations, the People are not required to produce that officer at the suppression hearing. See People v. Ketcham, 93 NY2d 416, 420 (1999); People v. Petralia, 62 NY2d at 51-52; People v. Green, 13 AD3d 646 (2004). In any event, the situation presented to Investigator Becker over the radio was corroborated by this finding the scene as described. People v. Lee, 193AD2d 529 (1993) The defendant invites this Court to find that the defendant was seized and prevented from moving from the time that Trooper Rush pulled behind the defendant’s vehicle. The Court declines such an invitation. According to testimony elicited at the hearing, both Trooper Rush and Investigator Becker had their rear emergency lights on, not their forward facing emergency lights. The forward facing emergency lights are what police use to alert drivers that they have been instructed to pull over and remain at the scene for some investigation or traffic stop. The police involved in Serrano activated their forward facing emergency lights to initiate the traffic stop. Here, the Court finds no such action occurred. Instead, the troopers had their rear facing emergency lights on. Rear facing emergency lights serve only to notify approaching drivers of the presence of the police so that those drivers can safely avoid any police vehicle. The Court finds this began as a DeBour level one encounter. People v. Harrison, 57 NY2d 470, 475 (1982); People v. Larkin, 62 Misc 3d 62, 66 (2018). The vehicle was not lawfully parked but was pulled over on the side of a poorly lit major state highway in the middle of the night when the roadway was wet; the car being stopped in a precarious position strongly implied something had gone awry, albeit not necessarily anything criminal. The circumstances created an objective, credible reason, not necessarily indicative of criminality for the police to seek information. Thus, the police behaved lawfully when they approached Defendant’s car. See People v. Valerio, 274 AD2d 950 (2000) (holding that a vehicle being illegally parked provides an objective, credible reason for police to approach but does not elevate the circumstances to De Bour level two); People v. Carr, 103 AD3d 1194 (2013) (affirming the holding in People v. Valerio). A DeBour level two encounter allows pointed questions about suspected crimes if police have a founded suspicion that criminal activity is afoot. Here, the Court finds that (1) Investigator Becker’s seeing the defendant throw the red solo cup out of the car as he approached the vehicle, coupled with (2) his examination of the red solo cup and finding it had what he believed to be remnants of an alcoholic beverage inside, and (3) indicia of intoxication by the smell of alcohol emanating from the car, the slurred speech, and the bloodshot watery eyes of the defendant gave Investigator Becker a basis for a suspicion of wrongdoing that would permit a level two encounter and his pointed question about whether the defendant had been drinking. Indeed, according to the testimony adduced at the hearing, an inquiry into alcohol consumption was not even Investigator Becker’s first question of the defendant. Instead, Investigator Becker’s first questions centered on identification of the driver, where he was coming from, and where he was heading. Only after observing the defendant exhibit indicia of intoxication when answering those basic nonthreatening questions did Investigator Becker then ask about whether the defendant had consumed alcohol. At that point, what began as a welfare check then turned into a rather standard DWI investigation and ultimately the defendant was placed under arrest. Based on the foregoing, even considering the recent Serrano decision from the Appellate Division, the Court sees no basis to modify any part of its ruling issued at the conclusion of the June 6, 2024 hearing. The police were justified in approaching the defendant’s parked vehicle to request information based on the circumstances presented herein. The indicia of intoxication exhibited by the defendant gave Investigator Becker a founded suspicion that criminal activity was afoot. As a result, he was authorized to inquire further of the defendant. That inquiry permitted the officer to detain the defendant and request that he perform the various roadside tests. The various indicia of intoxication, the defendant’s performance on the roadside tests, the statements made by the defendant and the circumstances that presented themselves to the officer during the time of the encounter gave the officer probable cause to arrest the defendant for driving while intoxicated. This constitutes the decision and order of the Court. SO ORDERED Dated: September 10, 2024
