People v. Lee

• Decision Date: 22 March 1994
• Citation: 160 Misc.2d 711,610 N.Y.S.2d 1013
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Affie T. LEE, Defendant.
• Court: New York County Court

Page 1013

610 N.Y.S.2d 1013

160 Misc.2d 711

The PEOPLE of the State of New York, Plaintiff, v. Affie T. LEE, Defendant.

Orange County Court.

March 22, 1994.

Francis D. Phillips, II, Dist. Atty. of Orange County, Goshen, for plaintiff.

The Legal Aid Soc. of Orange County, Inc., Goshen, for defendant.

PANO Z. PATSALOS, Justice.

Defendant was charged in a one count indictment with the crime of criminal possession of a controlled substance in the first degree. In her omnibus motion, among other forms of relief, defendant seeks to suppress any and all physical evidence obtained by the State Police.

A hearing was held at which three troopers and one investigator, all with the State Police, testified, as did the defendant. The Court, insofar as relevant to these proceedings, makes the findings of fact hereinafter set forth.

It appears that on September 30, 1993 at approximately 12:30 a.m. the defendant was a passenger in a vehicle being operated by a Mr. Highsmith. There were no other occupants in the vehicle. As the vehicle proceeded through the toll booth plaza in the Town of Woodbury in Orange County, New York, it was observed by troopers who were parked in their patrol vehicle some distance west of the toll plaza. The troopers testified that they observed this vehicle's right headlamp not to be functioning. As this vehicle proceeded in a westerly direction, the troopers brought it to a stop on the shoulder of New York State Route 17. Both troopers exited their vehicle and approached the stopped vehicle. Upon inquiry of both the driver and passenger it was determined that neither was in possession of an operator's license, nor was any paperwork regarding the registration of the vehicle produced. However, the operator did provide an expired temporary insurance card. Upon further inquiry of both the operator and passenger, neither had any form of identification to present to the troopers.

The troopers observed the rear driver's side window to have been smashed, with glass all over the back seat and floor, damage to the right front quarterpanel and what appeared to be a bullet hole in the door of the driver's side of the vehicle. Upon making such observations the troopers returned to their vehicle, radioed to their station to check the ownership of the vehicle, whether it was reported stolen, if the driver had a valid operator's license and to check on the passenger. Both troopers then exited from their vehicle and requested the driver to step to the rear of his vehicle, while the passenger remained inside.

One of the troopers requested backup assistance. At some point before the backup troopers arrived, one of the troopers first on the scene was told that the rear window was smashed as the vehicle had been vandalized in New York City. Assistance did arrive in the person of Trooper Kreppein, together with a partner, and a canine. The testimony of the troopers and the defendant as it relates to the foregoing events appears to be in general agreement.

Upon his arrival Trooper Kreppein was briefed by one of the other troopers relative to the information obtained from the occupants, as well as the observations made of the vehicle. The testimony of what transpired thereafter at the scene of the highway stop is not in total agreement. Notwithstanding the disagreements, it appears that Trooper Kreppein did speak with the defendant and re-asked some of the questions regarding where the defendant and driver were coming from, where they were going, where they had been, their names and dates of birth. As all troopers were outside of their vehicles, there is no indication that the station had transmitted any information regarding the vehicle, the driver or the passenger. It further appears that Trooper Kreppein, in substance, stated to one of the other troopers that everyone should proceed to the barracks where they could better sort out and confirm the situation regarding the vehicle and the occupants. Trooper Kreppein testified he spoke with defendant while she was standing near the front passenger side of the first trooper car and also in front of the stopped vehicle. There is conflicting testimony as to the position of the three vehicles on the highway. Some testimony places the vehicles in a straight line, one directly behind the other. Other testimony places the vehicles one behind the other, but in staggered formation.

At some point Trooper Kreppein stated to defendant that the driver of the stopped vehicle said it was okay to search the car with his dog, and it would be a canine narcotics search. The trooper testified the defendant became visibly nervous when she was so informed. Trooper Kreppein stated to the defendant that if they all proceeded to the state police barracks she would have to ride in the back of his vehicle, which vehicle contained his canine. Defendant states she became nervous and "scared" when so advised. The trooper further informed the defendant that the canine was drug-trained and if she were carrying anything illegal, the dog would respond aggressively and the dog would bark if there were drugs on her person. The trooper further stated that while he was speaking with the defendant he heard the dog barking. Notwithstanding the canine vehicle was some distance behind where defendant was standing, she claimed she was able to see and hear the dog. Trooper Kreppein testified that upon his making the statement regarding the conduct of the dog that the defendant stated "What if I have something," to which he responded, how much do you have, and the defendant replied, "A lot." Although the defendant denies any such conversation, both the trooper and the defendant agree it was at or about this point that defendant reached under her sweater or shirt and removed from one side of her bra a plastic bag containing 301.31 grams of a white chunky substance and from the other side, a plastic bag containing 218.30 grams of the same substance. The defendant was then placed under arrest, handcuffed, taken to Trooper Kreppein's canine vehicle and seated in the back of that vehicle. To the rear of where she was seated was the canine secured in a kennel.

Defendant testified that before she removed the plastic bags from under her shirt, Trooper Kreppein walked her back to the canine vehicle. She stated that the dog was barking, moving around freely in the cab of the vehicle and that Trooper Kreppein said the dog was vicious. Defendant stated she was able to identify the dog as a Rottweiler, as her neighbor owned a dog of the same breed. She further testified that Trooper Kreppein said if she had anything on her that the dog would smell it. The defendant stated it was after these events that she removed the plastic bags from her person.

Trooper Kreppein testified that when he stated to defendant the dog would be able to detect illegal drugs on her person, he did not have any basis to suspect she had any drugs, and such statement was made as a "ruse" or a "ploy." He went on to testify that the dog was not trained to detect drugs on a person but was trained to search for drugs in a vehicle or other nonhuman objects.

Further recitation of the facts is not necessary for the Court to make its conclusions of law and arrive at its decision.

Based on the preceding findings of fact the Court makes the following conclusions of law:

The uncontroverted testimony in the course of the hearing compels the determination that the car in which defendant Affie T. Lee was a passenger was properly stopped for a vehicle and traffic violation, to wit, a malfunctioning headlight. (People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39). The New York State Police properly made inquiry of the driver of the automobile regarding license, registration and identification. (See Vehicle and Traffic Law § 401[4]; People v. Ellis, 62 N.Y.2d 393, 477 N.Y.S.2d 106, 465...