People v. Kraten, 19120319

CourtNew York Justice Court
Writing for the CourtThomas J. DiSalvo, J.
Citation2021 NY Slip Op 50540 (U)
Decision Date11 June 2021
Docket Number19120319
PartiesThe People of the State of New York v. Michael W. Kraten, Defendant.

2021 NY Slip Op 50540(U)

The People of the State of New York
Michael W. Kraten, Defendant.


New York Justice Court of the Town of Webster, Monroe County

Decided on June 11, 2021

Sandra Doorley, District Attorney, Monroe County (John Marsella, of Counsel), for plaintiff.

James L. Riotto II, Esq. (Christopher Mona, of Counsel), for defendant

Thomas J. DiSalvo, J.

The defendant was charged with insufficient turn signal - less than 100', (VTL § 1163 [b])1 , common law driving while intoxicated, (VTL § 1192 [3]) and per se driving while intoxicated (VTL§ 1192 [2]) on December 18, 2019 at approximately 2:19 A.M. Defense counsel submitted omnibus motions requesting, among other things, preclusion of statements purportedly made by the defendant and not contained in the People's CPL § 710.30 notice and suppression of all evidence seized or discovered as a result of the arrest pursuant to CPL § 710.20. The latter motion effectively is a request for a probable cause and a Huntley hearing. Those hearings were conducted on April 30, 2021. At that hearing the People called two witnesses, i.e. Sergeant Michael Wilder and Officer Ashley Lass, both of the Webster Police Department.

Facts of the Case.

Probable Cause Hearing. Sergeant Wilder was the first to testify. He stated that on the date and time in question he was at the Webster Police Department when he received a phone call on his personal cell phone from his friend, Sam Weech, who was an off duty Rochester Police Officer. He stated that said officer advised him that he was following a reckless driver eastbound on New York State Route 104 approaching Hard Road in the Town of Webster. As a result, Sergeant Wilder, who was in his police car at the time of the call, left the town hall campus and headed for Route 104 in search of said vehicle. He further was informed that the

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subject vehicle had a New York State license plate bearing number 60659JC.2 The friend told Sergeant Wilder that the vehicle had turned off Route 104 and was heading northbound. The Sergeant caught up that vehicle as it made a left hand turn from Webster Road on to Millcreek Run. As he followed the said vehicle he observed the defendant make a right hand turn on to Holley Road.However, he testified that the right hand turn was made without the benefit of a turn signal. He continued to follow the vehicle as it made another right hand turn on to Willow Lane. The officer stated that the driver failed to signal said turn.At that time the officer turned on his emergency lights in an effort to make a traffic stop. However, the vehicle continued onto Cloverwood Drive before coming to a stop.

The officer then approached the driver's side of the vehicle. He observed that the driver was the only occupant. The driver produced a New York State driver license which identified the driver as the defendant herein. In response to the officer's questions, the defendant stated that he was coming from a friend's house and was headed home on the said Cloverwood Drive. The defendant further responded that he had previously consumed a glass of wine and a Smirnoff. Sergeant Wilder testified that while speaking with the defendant he observed various indicia of intoxication including mumbled speech, odor of alcohol, glassy and bloodshot eyes. The officer then asked for Officer Lass to come to the scene to continue the investigation. Officer Lass did in fact arrive and did take over the investigation. However before leaving, Sergeant Wilder issued a uniform traffic information charging the defendant with the said violation of VTL § 1163 (b) to wit: "insufficient turn signal - less than 100".

Officer Ashley Lass then was called to the stand. She testified to approaching the driver's side of the vehicle in order to speak to the defendant. The officer then proceeded to state that she observed the defendant exhibit various indicia of intoxication. In response to a question, the defendant again stated that he had consumed a glass of wine and a Smirnoff. The officer then directed the defendant to exit his vehicle. Upon complying with that demand, the officer indicated that she observed the defendant having poor balance and was unsteady on his feet as he proceeded to the front of his vehicle.

The defendant agreed to perform various roadside tests. The officer testified to having the defendant perform the standardized field sobriety tests, i.e. the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test. In addition, the defendant was asked to and did agree to submit to a preliminary breath screening test. Based on the performance of the defendant on the standardized field sobriety tests and the preliminary breath test the defendant was placed under arrest and transported to the Webster Police Department.

Huntley Hearing. At the Webster Police Department the defendant was read his Miranda warnings by Officer Lass. A copy of her Miranda warnings card was entered into evidence without objection. During the processing, the defendant made various spontaneous statements and asked various questions of the officer. There was no testimony of any questions of the defendant by Officer Lass or of any other officer relative to the incident in question at the police department.The statements of the defendant as set out in the CPL § 710.30 Notice were made

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during the initial investigatory stage of the traffic stop when the defendant, although not free to leave, was not under arrest.

Questions Presented.

Does the fellow officer rule apply to the facts of this Case?

Did the first officer have probable cause to stop the defendant's vehicle?

Was the second officer justified in approaching the defendant's vehicle and to make enquiries of the defendant?

Did the second officer have probable cause to detain and to direct the defendant to exit the vehicle?

Did the second officer have probable cause to make the arrest?

Legal Analysis.

The Call.As previously stated Sergeant Wilder became involved in this matter because of a phone call from an off-duty Rochester Police Officer about a reckless driver on Route 104. Neither the testimony of Sergeant Wilder nor his written Addendum provided to the court with the various accusatory instruments state what exactly the driver of the vehicle in question was doing as it proceeded on New York State Route 104 to be considered as being reckless. Vehicle and Traffic Law § 1212 states that

"Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor."

Nevertheless, "Information received from another police officer is presumptively reliable ...." (People v. Ketcham, 93 NY2d 416,420, 690 N.Y.S.2d874,877 [1999]). Certainly Sergeant Wilder had an obligation at that point to investigate the situation, which he did in setting out tofind the alleged reckless driver.

The Stop. Sergeant Wilder caught up with the defendant's vehicle on Webster Road as the defendant turned onto Millcreek Run. He continued to follow it to the intersection of Millcreek Run and Holley Road. It was at that time that the officer stated he observed the defendant make a right hand turn onto Holley Road without the...

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