People v. Conzo

• Decision Date: 10 July 1979
• Citation: 418 N.Y.S.2d 750,100 Misc.2d 143
• Parties: The PEOPLE of the State of New York v. Thomas A. CONZO, Defendant.
• Court: New York Supreme Court

Page 750

418 N.Y.S.2d 750

100 Misc.2d 143

The PEOPLE of the State of New York v. Thomas A. CONZO, Defendant.

Supreme Court, Criminal Term, Suffolk County, Part II.

July 10, 1979.

Patrick Henry, Dist. Atty. of Suffolk County, William J. Bernstein, Hauppauge, of counsel for the People.

Arnold J. Hauptman, Massapequa, for defendant.

MEMORANDUM

JOSEPH JASPAN, Judge.

The line which marks the boundary between permissible police action and an unwarranted intrusion in violation of Fourth Amendment rights is frequently thin and not readily distinguishable. The need for on-the-spot decisions by law enforcement officials does not afford them the luxury of a contemporaneous in-depth analysis or consultation with counsel. It is reserved to the courts to make a retrospective judgment and to consider the multitude of variables in weighing the interests of society vis-a-vis the inherent rights of a citizen.

Such an issue is presented on defendant's motion to suppress physical property which forms the basis for charges of Criminal Possession of a Weapon in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Eighth Degree and Criminal Possession of Marijuana in the Fourth Degree. Defendant also moves to suppress "as fruits of the poisonous tree" post arrest statements attributed to him.

At about 10:30 p. m. on the night of December 1, 1978, two police officers on routine patrol in the parking lot of a shopping center in Bay Shore observed the defendant walking erratically toward a car. Their interest was heightened by the fact that he was singing loudly and waving a walking stick.

The defendant is a 250 pound male, aged 27, who on this winter night was wearing an earring, a suede hat with a wide brim, a vest, checkered shirt, blue jeans and carrying a large wooden eagle.

The total impact of the defendant's conduct and presumably his appearance, prompted the officers to intercept and stop him after he had entered the car, put it in motion, and started to back up.

Upon request, the defendant exited his car and produced his license, registration, and insurance card. He was then asked whether he was intoxicated or sick. Defendant replied he was "only slightly high" and was on his way to Lala's Bar on Sunrise Highway and was well enough to drive his vehicle. The defendant was concededly not belligerent.

One of the experienced police officers (Dowling) concluded from his observations including those as to the defendant's eyes, speech described as "somewhat slurred" and the odor of his breath, that defendant was inebriated and arrested him for Driving While Intoxicated (V & T Section 1192, subd. 3).

The other police officer (McCann) made no observations as to defendant's eyes, his breath or speech before the arrest, but nonetheless concluded from defendant's conduct that he was intoxicated. The defendant was not given any of the usual field tests such as touching his nose, picking up a coin, or walking a straight line.

The search of defendant's person as an incident to the arrest produced a knife as well as the weapon charged in the indictment. A search of the car at the scene resulted in the seizure of small quantities of marijuana, amphetamines, and cocaine.

The defendant was transported to the third squad and advised of his "rights" which he waived. He answered questions and agreed to take a breathalizer test. The test was administered at about 11:45 p. m. and produced a reading of .01. A reading of .10 is the minimum to support the charge of Driving While Intoxicated (1192, subd. 3). At 2:00 a. m. a urine test was given and it also "proved negative".

Accordingly, the Driving While Intoxicated charge was later withdrawn and the instant indictment is limited to the products of the aforementioned searches.

If the police action had been limited to an inquiry as to the defendant's intention and ability to drive, the intrusion upon defendant's freedom would be justified under the principles enunciated in People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39, because public safety was directly involved. People v. Abramowitz, 58 A.D.2d 921, 396 N.Y.S.2d 729.

But the defendant was also arrested and searched and it is this action which must be carefully examined.

No attempt is made to justify the search on the basis of "stop and frisk" (C.P.L. 140.50) and indeed there was no threatening action involved or suggested. It was conducted only as an incident to the arrest and can only be sustained if there was probable cause for the arrest (C.P.L. 140.10(1)(b)).

"Probable cause generally requires a reasonable belief on the part of the police that a particular individual or individuals have committed a crime or are about to do so. There must be more than mere suspicion." (People v. Esposito, 37 N.Y.2d 156, 371 N.Y.S.2d 681, 332 N.E.2d 863.

A threshold question is whether the defendant can, in any event, be charged with Driving While Intoxicated for acts committed exclusively on a privately owned parking lot serving a shopping center.

Section 1192(3) VTL provides that "No person shall operate a motor vehicle while he is in an intoxicated condition."

While this section does not limit or define the geographical area of the proscribed conduct, an omnibus provision (Section 1100) applies to this and to all VTL sections set forth under Title VII, "Rules of the Road". It reads as follows:

"(a) The provisions of this title apply upon highways and upon private roads open to public motor vehicle traffic except where a different place is specifically referred to in a given section.

(b) The provisions of this title relating to obedience to stop signs, flashing signals, yield signs, traffic-control signals and other traffic-control devices, and to one-way, stopping, standing, parking and turning regulations shall also apply to the parking area of a shopping center for which the legislative body of any city or village, or the town board of any town, has adopted any local law, ordinance, rule or regulation ordering such signs, signals, devices, or regulations."

Subdivision (a) is clearly applicable to and limits enforcement of Section 1192 to highways and private roads open to public motor vehicle traffic.

The common denominator for both public highways and private roads is use for "Vehicular traffic ", Sections 133, 134, and 140 VTL; People v. County of Westchester, 282 N.Y. 224, 26 N.E.2d 27, a characteristic not readily attributable to a parking lot.

It is also evident from the structure of Section 1100 that a special and additional subdivision "(b)" was required to embrace the parking area of a shopping center within the traffic control provision of Title VII. The very language used excluded, by...