People v. McClam
| Decision Date | 30 March 2015 |
| Docket Number | 2014NA008748 |
| Citation | 2015 NY Slip Op 50435 (U) |
| Parties | The People of the State of New York, v. Tony McClam, Defendant. |
| Court | New York District Court |
Hon Madeline Singas, Acting Nassau County District Attorney Michael Degarabedian, Esq, Attorney for Defendant
The Defendant is charged with two (2) counts of criminal possession of marijuana in the fifth degree, driving while ability impaired by a drug, driving while ability impaired by the combined influence of drugs and/or alcohol and three (3) counts of failing to stop at a stop sign, in violation of PL § 221.10(2) and VTL §§ 1192(4), 1192(4a) and 1172(a), respectively.
On March 9, 2015, pursuant to a stipulation of the parties, this court (Engel, J.) conducted a Mapp/Dunaway/Huntley/refusal 1 hearing, to determine issues involving probable cause for the Defendant's arrest, suppression of all tangible evidence seized from the Defendant and/or his vehicle, suppression of statements allegedly made by the Defendant and the Defendant's refusal to submit to a chemical test of his blood.
At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 NY2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses, 32 AD3d 866, 823 N.Y.S.2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 N.Y.S.2d 696 (2006) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People's case in chief at trial. People v. Huntely, supra.; People v. Valeruis, 31 NY2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 N.Y.S.2d 625 (1977). Once the prosecution has met this burden, the Defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 N.Y.S.2d 161 (2nd Dept. 1963) Similarly, before evidence of the Defendant's refusal to submit to a chemical test will be admissible at trial, the People bear the burden of establishing that the Defendant "was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal." VTL §§ 1194(2)(f)
The People attempt to meet their burden through the testimony of Police Officer Bobby G. Ford, Police Officer Michael LaSalla and Police Officer Gregory Nicholson. The court has had the opportunity to listen to the testimony of these witness, view their demeanor on the witness stand and to view a dash cam video recording of the police interaction with the Defendant at the time of the stop of his vehicle. Having the benefit of the on scene recording, the court is able to see that Office Ford's recollection of the sequence and/or happening of certain events is inconsistent with some of the events which occurred at the time of the stop of the Defendant's vehicle. These instances notwithstanding, the court finds no reason to question the veracity of any of the officers, and makes the following findings of fact based upon the evidence which the court finds credible.
Officer Ford has been employed by the Village of Freeport Police Department for the past nine (9) years and four (4) months. Prior thereto, he was a member of the New York City Police Department for almost twelve (12) months. Officer Ford's training at both the New York City and Nassau County Police Academies included training in the identification of narcotics and marijuana, including their appearance and packaging, as well as the signs and detection of impairment caused by these substances. In his career as a police officer Officer Ford has made over one thousand (1,000) arrests for the possession of marijuana and has been involved in more than twenty (20) driving while intoxicated or driving while ability impaired investigations.
On May 3, 2014, at approximately 8:50 p.m. Officer Ford was on patrol, in uniform, alone in a marked police vehicle, in the vicinity of Hamilton Street and Miller Avenue, in the Village of Freeport. Office Ford was facing westbound on Hamilton Street approximately fifty (50) feet from the corner of Hamilton Street and Miller Avenue. At that time Officer Ford observed a tan vehicle traveling northbound on Miller Avenue fail to stop at the stop sign located on that corner. Officer Ford turned northbound onto Miller Avenue and followed the tan vehicle, approximately one-half (½) block behind.
As testified to by Officer Ford, and confirmed by the dash cam video, the tan vehicle proceed on Miller Avenue, failing to stop for a stop sign at Miller Avenue and Adams Street, and again failing to stop at a stop sign at Miller Avenue and Front Street. At this latter intersection the video recording clearly shows the driver of the tan vehicle applying the brakes as the vehicle approached the intersection, coming to what is colloquially referred to as a "rolling stop," but never actually stopping the vehicle. It is at this point Office Ford activated his forward overhead lights and siren, signaling the tan vehicle to pull over. Although there was room for the tan vehicle to pull over to the right, it first came to a stop in the middle of Miller Avenue. After stopping, the tan vehicle then suddenly pulled forward a few feet and slightly to the right; although, it did not pull over to the right curb.
Officer Ford approached the tan vehicle from the driver's side, where he observed the Defendant, the lone occupant of the vehicle, in the driver's seat, behind the steering wheel. OfficerFord asked the Defendant for his license, registration and insurance card. As observed on the video recording, the Defendant handed four (4) different documents to the officer, one (1) at a time, over the course of approximately forty five (45) seconds. During this time, Officer Ford smelled the strong odor of marijuana and saw a few zip lock bags, with a brown leafy substance, which appeared to him to be marijuana, on the Defendant's lap. He also observed the Defendant to have bloodshot watery eyes, dried white lips and to appear to be unsure that Officer Ford was a police officer or what was going on. Upon observing the zip lock bags on the Defendant's lap, Officer Ford asked the Defendant, Consistent with this testimony, on the video recording, Officer Ford can be seen twice gesturing at or into the driver's window towards the Defendant. In response, the Defendant stated that he had smoked marijuana and that the marijuana was for personal use. Officer Ford then told the Defendant to stay where he was and returned to his police vehicle to call for assistance.
In response to Officer Ford's call for assistance Sargent Rahn arrived on the scene about three (3) minutes later. Officer Ford and Sgt. Rahn approached the driver's side of the Defendant's vehicle and told the Defendant to get out of the vehicle. The Defendant did so, without assistance, and stood in front of Officer Ford. At that time Officer Ford smelled the strong odor of marijuana coming from the Defendant. He did not smell an alcoholic beverage on the Defendant. Officer Ford further observed the Defendant to have watery bloodshot eyes and "dry mouth." At approximately 9:00 a.m., Officer Ford immediately reached into the Defendant's left front jacket pocket, recovering a bag of marijuana, and then had the Defendant turn around so that he could be handcuffed. A bag of marijuana was also recovered from the Defendant's sleeve at that time. Officer Ford asked the Defendant if there was anything else in the vehicle. The Defendant did not respond. Officer Ford asked the Defendant if he would submit to standardized field sobriety tests ("SFSTs"); and, the Defendant said no. Officer Ford then placed the Defendant in the rear of his police vehicle.
Sgt. Rahn called for additional units to respond to the scene. Three (3) to four (4) other officers arrived in response. Officer Ford and some of the other officers searched the interior and trunk of the Defendant's vehicle. At that time Officer Ford found a "brick" of cash totaling approximately fifteen thousand ($15,000.00) dollars in the center console of the vehicle and suitcases, boxes and bags in the trunk. Officer Ford did not open these last three (3) items. The Defendant was then moved to a different patrol vehicle and, at approximately 9:40 p.m., driven first to the station house in Freeport and, shortly thereafter, to the central testing section ("CTS") of the Nassau County Police Department headquarters, arriving there just after 10:00 p.m.
At approximately 9:40 p.m., shortly after the Defendant was removed from the scene, Officer LaSalla, a member of the Highway Patrol K-9 Unit, and his partner, "Jax," arrived on the scene. Beginning at the front driver's side fender of the Defendant's vehicle, Officer LaSalla commanded Jax to "find drugs," and Jax began sniffing under the exterior of the Defendant's vehicle. When he reached the driver's door Jax's behavior began to change, he stood and put his head in the passenger's window on the driver's side and then went into a "passive alert" by sitting. Officer LaSalla opened the vehicle's door and sent Jax into the vehicle. Jax, after entering the vehicle, gave an "alert" signal at the rear of the gear shift. Officer LaSalla then removed Jax from the vehicle's interior, notified other officers on the scene, and had Jax continue to examine the vehicle. At the trunk Jax stood into the trunk, placed his nose on one of the black bags in the...
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