People v. Conrad

• Citation: 2022 NY Slip Op 50652 (U)
• Decision Date: 20 July 2022
• Docket Number: 2103-0009
• Parties: The People of the State of New York, Plaintiff, v. Matthew P. Conrad, Defendant.
• Court: New York Justice Court

2022 NY Slip Op 50652(U)

The People of the State of New York, Plaintiff,
v.
Matthew P. Conrad, Defendant.

No. 2103-0009

Justice Court of the Town of Webster, Monroe County

July 20, 2022

Unpublished Opinion

Sandra Doorley, District Attorney, Monroe County (Ryan R. Mulcahy of Counsel), for plaintiff.

Christopher Schiano, Rochester, for defendant.

Thomas J. DiSalvo, J.

History of the Case

The defendant was charged on February 23, 2021 with refusal to take a breath test, VTL § 1194 (1)(b), failure to comply with a lawful order of a police officer, VTL § 1102, driving while impaired by drugs, VTL § 1192 (4), unlicensed operator, VTL § 509 (1), unsafe lane change, VTL § 1128 (c), unsafe lane change, VTL § 1128 (a), aggravated unlicensed operation, 3rd degree, VTL § 511 (1) (a) and criminal possession of controlled substance, 7th degree, VTL § 220.03. The uniform traffic informations indicate that he was driving a black 2021 GMC. He was arraigned on May 19, 2021. At which time the court suspended his driver license as result of a Report of Refusal to Submit to Chemical Test. At a subsequent disposition appearance on July 7, 2021 defense counsel requested supporting deposition for the various vehicle and traffic law offenses. Omnibus motions were submitted by defense counsel, requesting, among other things, probable cause and Huntley hearings and dismissal of any vehicle and traffic charges for which requested supporting depositions were not provided. Said hearings took place on two separate dates. The hearings began on October 29, 2021. The balance of the hearings took place on April 1, 2022, after an adjournment for counsel to resolve some discovery issues.

Facts of the Case.

Trooper Alexsandr Delcorvo, testified on behalf of the People. He testified that on February 23, 2021 at approximately 9:39 A.M. he was on routine patrol in the City of Rochester. At which time he received a dispatch regarding a vehicle that hit the barrier with the air bags deployed in the area of State Route 104 at Maplewood Avenue in the City of Rochester, but which had left the scene of the accident. When he arrived at the scene he did not see said vehicle. The trooper then went about his normal duties. About a half hour later, while he was assisting a disabled vehicle on Route 104 eastbound, he was approached by a concerned citizen, who told him that a vehicle had just passed him driving eastbound with air bags deployed and driving on one rim. Trooper Delcorvo proceeded to look for said vehicle. Eventually he observed a vehicle with air bags deployed driving on one rim in the area of State Routes 104 and 590. That location being in the Town of Irondquoit. At that time he activated his emergency lights and attempted to initiate a traffic stop of the vehicle. The defendant initially failed to comply with that demand to pull over. The trooper then notified dispatch that he was initiating a pursuit of that motor vehicle. During the time of that pursuit the trooper indicated that he observed various violations of the Vehicle and Traffic Law. He also observed vehicle parts actually flying off the vehicle. The vehicle was followed over the Irondequoit Bay Bridge into the Town of Webster, where it came to a stop just past the bay bridge. Upon exiting his patrol car he approached the stopped vehicle and detained the driver without incident. He was able to identify the driver through his New York State Driver License. The defendant was then identified in court as the driver of the stopped motor vehicle.

Upon approaching the vehicle the trooper allegedly engaged in a conversation with the defendant. He testified that he asked the driver if he was involved in an accident. To which the defendant reportedly answered "yeah". The trooper stated that the defendant told him a vehicle cut him off and that's why he hit the barrier and he had to leave the accident because he had to go to an ATM on Hudson Avenue in the City of Rochester. He further testified that he asked the driver where he was coming from and where he was going. To which the defendant stated "To a Norris, a Rehab Facility." Trooper Decorvo indicated that during said conversation he observed the defendant to have blood shot, glassy eyes, slurred speech and a slow movement of the eyes. He further observed the defendant nodding off while talking to him. The trooper stated that he observed a "blue substance" around his mouth. The defendant denied having been drinking, but admitted having taking Xanax and another medication for which he had a prescription, that he had taken the night before. However, on cross-examination, the trooper testified that he did not engage in any conversation with the defendant when he first approached him. ^[1] So although the conversation between the trooper and the defendant no doubt occurred, it is unclear when than conversation actually took place. ^[2] The trooper testified on direct examination as to speaking with the defendant, but there was no time frame of the conversation presented by the People. However, on cross-examination the trooper specifically denied having any conversation with the defendant at the time he initially approached the defendant's vehicle.

Trooper Decorvo testified that he requested that the defendant perform some standardized field sobriety tests to determine if he was capable of driving. The defendant complied and did perform the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test. None of which the defendant was able to satisfactorily perform. The alphabet and counting tests were also administered. Neither of which the defendant was able to correctly perform. Making the determination that the defendant was impaired the trooper arrested the defendant for driving while impaired. However, the direct examination does not address the fact that Emergency Medical Service [EMS] was called upon the defendant exiting his vehicle. In addition, on cross-examination it appears that the roadside field sobriety tests were performed after the defendant was un-handcuffed and after he was examined by EMS. ^[3]

The trooper further testified that the assistance of a drug recognition expert was eventually sought out and the defendant was transferred to his trooper station. At the station the defendant was read the standard refusal and Miranda warnings. The defendant eventually refused to take the chemical breath test.

During defense counsel's initial cross-examination the trooper reiterated his observations of the defendant's vehicle and his pursuit of the defendant's motor vehicle across the Irondequoit Bay Bridge and into the Town of Webster, where the vehicle pulled over, presumably just past the Bay Road off ramp. The trooper testified that upon approaching the defendant's vehicle he asked the defendant to exit the his vehicle. Once out of his vehicle the defendant was immediately turned around handcuffed and then patted down. The trooper agreed that he did not ask the defendant for his license, or registration. Nor did he ask him any preliminary questions before directing him out of the vehicle. Nor was there any indication on cross-examination that the trooper observed any indicia of intoxication prior to putting the defendant in handcuffs upon his exiting his vehicle.

On direct examination the testimony was that the defendant was not placed in the trooper's vehicle, but was kept outside of the vehicle to await Emergency Medical Services [EMS], which was called to check him over. EMS did in fact arrive at the scene. While waiting for EMS the defendant remained handcuffed. But was un-handcuffed upon EMS escorting him to the ambulance. The trooper could not remember if the defendant was actually placed inside the ambulance for an examination by the paramedics. The trooper testified that he did not read the defendant his Miranda rights prior to the arrival of EMS. On cross-examination the trooper testified that after he took the defendant into custody he placed him in the back of his car. ^[4]

After cross-examining the trooper, relative to his administration of the roadside sobriety tests, defense counsel inquired as to whether the People were in possession of any body cam footage taken by two Webster Police Officers who arrived at but only briefly remained at the scene of the arrest or of any video footage taken by the EMS. Defense counsel's cross-examination was suspended and the hearings were adjourned to permit the People to inquire as to the existence of said discovery materials. Upon resuming the hearings on April 1, 2022 it was confirmed that no body cam or dash cam existed. At which point defense counsel proceeded to continue his cross-examination of Trooper Delcorvo.

The Trooper reiterated that he stopped the defendant's truck at about 9:43 A.M., and that there were two other trooper cars at the scene of the stop. He testified that the defendant was immediately taken into custody. In the words of the Trooper Delcorvo "He was detained, yes." At which time the defendant while handcuffed and placed in the back of the trooper's vehicle. Prior to...