People v. Ohlsen
| Decision Date | 12 July 2021 |
| Docket Number | Case No. CR20-089 |
| Citation | 72 Misc.3d 1206 (A),148 N.Y.S.3d 681 (Table) |
| Court | New York County Court |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Christopher S. OHLSEN, Defendant. |
Kristy L. Sprague, Esq., Essex County District Attorney, (Kenneth P. Borden, Jr., Esq., of counsel), Elizabethtown, New York.
Ruchelman & Cruikshank, P.C. (Allan B. Cruikshank, Jr., Esq., of counsel), Plattsburgh, New York, for the defendant.
Motion by the defendant to suppress evidence on the grounds that the forcible stop of his motor vehicle, which led to the discovery of 11.72 pounds of marijuana, was illegal. The issue is raised and comes to this Court under the most unusual of circumstances.
The defendant is charged by a two-count indictment with criminal possession of marijuana in the first degree ( Penal Law § 221.30 ), a class C felony, and moving from a lane unsafely ( VTL § 1128[a] ), a traffic infraction. The charges arise out of the defendant's alleged possession of 11.72 pounds of marijuana which was discovered in his vehicle after he was stopped by now-retired New York State Trooper Douglas T. Hoffman (Hoffman) for purportedly twice operating his vehicle to the right of the fog line on New York state route 73 in the town of North Elba, Essex County, New York on October 22, 2019.
The indictment was filed with the Clerk of this Court on August 5, 2020, and the papers from the local criminal court were received by the Clerk on August 23, 2020. The defendant was arraigned on the indictment at a virtual appearance on September 1, 2020. The People filed a certificate of compliance with their automatic discovery obligations on September 14, 2020, representing, among other things, that the transcript of the grand jury proceedings had been furnished to defense counsel1 . No pretrial motions were filed by the defendant within the forty-five-day period provided in CPL 255.20(1). By an order dated June 14, 2021, the trial of this criminal action was scheduled to commence on July 6, 2021, as a backup to another criminal trial. On June 16, 2021, counsel were notified that this action would proceed to trial on the scheduled date.
The defendant's counsel applied for an order to show cause on June 29, 2021, seeking an Ingle hearing ( People v. Ingle , 36 NY2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 [1975] ) to determine whether the defendant's vehicle was lawfully stopped. Specifically, the defendant asserted that there was no Vehicle and Traffic Law violation justifying the stop of his vehicle and that Hoffman's grand jury testimony was insufficient to establish probable cause to believe that a violation of Vehicle and Traffic Law § 1128(a) had in fact occurred to justify the stop. This Court then reviewed the grand jury transcript and issued the order to show cause. The People opposed the motion. The motion was granted, for a number of reasons. First, review of the grand jury minutes in light of People v. Davis , 58 AD3d 896, 870 N.Y.S.2d 802 left this Court concerned about the legal sufficiency of the evidence and the instructions before that body as well as the legality of the forced stop of the defendant's automobile, and that defense counsel's failure to file a pretrial motion raising those issues may constitute ineffective assistance of counsel to such an extent that reversal of any conviction on appeal was possible. Second, the convenience of over one hundred twenty-five county residents summoned as jurors in this case would be adversely affected if required to appear for trial on July 6, 2021 and either the case was to be sent back for trial after appeal or a trial order of dismissal was issued at the close of the People's case on the grounds of legally insufficient evidence to establish that the defendant violated VTL § 1128(a). Moreover, had the case proceeded to trial the defendant could have sought an immediate hearing outside of the presence of the jury on these issues (see CPL § 710.60[5] ) which would have unnecessarily inconvenienced the sworn jury. A suppression hearing was thus scheduled for July 1, 2021 at 3:00 p.m. in order to resolve the issue prior to requiring those citizens to appear for jury selection the following week. The People filed a motion to reconsider that day, returnable at the time of the hearing.
On July 1, 2021, counsel and the defendant personally appeared for the Ingle hearing. Although the assistant district attorney advised the court that Hoffman was in the courthouse hallway, he did not want Hoffman to testify and afford defense counsel an opportunity to cross-examine. Instead, the assistant district attorney requested that the Court determine the legality of the stop based solely upon Hoffman's grand jury testimony. The Court inquired whether the People wished instead to have the trial adjourned and allow the defendant the opportunity to file a pretrial motion challenging the grand jury proceedings, which was declined. The Court also afforded the People the opportunity to have Hoffman testify that day in support of their burden of proof for an Ingle hearing, and that was refused with the People maintaining their position that the issue of the legality of the automobile stop could and should be decided based upon the grand jury testimony alone. The defendant also agreed to that procedure. Decision on the issue was reserved, the trial was adjourned, and counsel were allowed additional time to file any legal citations in support of their respective positions.
The Court has considered the following papers on the motions: order to show cause dated June 29, 2021 affirmation of Allan B. Cruikshank, Jr., Esq. dated June 29, 2021, and affidavit of Christopher Ohlsen sworn to June 29, 2021 with exhibit A thereto, all in support of the motion; affirmation of Kenneth P. Borden, Jr. Esq. dated June 30, 2021 with copies of a compliance report showing defense counsel's receipt of the grand jury transcript on September 14, 2020 and the transcript of the virtual pretrial conference held on March 29, 2021, and notice of motion to reconsider dated July 1, 2021 with affirmation of Kenneth P. Borden, Jr., Esq. dated July 1, 2021 with a complete copy of Hoffman's grand jury testimony. The Court has also considered the case citations relied upon by counsel in both their respective motion papers and in the defendant's memorandum of law filed on July 7, 2021.
Hoffman testified before the grand jury that at 9:36 p.m. on October 22, 2019, he was in a marked State Police Tahoe vehicle "sitting in the parking lot of ... the Olympic ski jumps" in the town of North Elba, Essex County, New York, observing traffic2 . He had been previously notified by a State Police narcotics investigator that a gray Ford Fusion vehicle "was possibly transporting narcotics south"3 . Hoffman observed a vehicle matching that description proceeding south on New York State Route 73, a two-lane highway4 and he drove out of the parking lot to follow it5 . Within a distance of "[p]robably less than three miles"6 , Hoffman "observed the vehicle twice cross over the -- the white line or the fog line"7 on the right side of the road8 . The first instance of the defendant's vehicle crossing the fog line occurred on a "straight away"9 where the roadway "was level"10 and he observed "[b]oth of the passenger side wheels"11 completely cross the white line for "[j]ust a few seconds"12 as "a vehicle traveling northbound [ ] passed our location"13 . Hoffman testified that the maneuver of the defendant's vehicle did not cause any danger to the oncoming car14 . The second instance occurred "proceeding down a hill and as you make the right-hand curve you begin up a hill heading back up"15 . "There's a guide wire that travels around that corner16 separating "a very narrow shoulder"17 from "a fairly steep embankment"18 , and the defendant's vehicle came "within a few feet"19 of the guide wire20 . Hoffman contacted another trooper, "Trooper Brown, who was also working at that time and I advised her that I would be stopping a vehicle in my location"21 .
After the defendant's vehicle was stopped and then moved to a safe location off of the highway, Hoffman asked the defendant "if he was having a hard time seeing as the result of it being dark and -- the rain"22 , to which the defendant replied "that the road was wet and that he had probably hydroplaned as a result of the -- of the wet roads23 . During the course of Hoffman's conversation with the defendant, who was still in the driver's seat of the car, about where the defendant was going and where he had been, Hoffman testified that the defendant appeared nervous because the defendant "wouldn't look at me when he was answering the questions -- he kept one hand on the steering wheel and he seemed to be tense the way that he was answering my questions"24 . Hoffman told the grand jury that "[w]hile I was interviewing Mr. Ohlsen I detected an odor of burnt marijuana emanating from inside the vehicle"25 . Hoffman returned to his patrol vehicle "to run a check on the driver's license and registration"26 , at which time Trooper Brown (Brown) arrived27 . Brown exited her vehicle, spoke with Hoffman, who told her that he "detected an odor of marijuana from inside the vehicle and she -- at that point in time, she approached Mr. Ohlsen to have a conversation with him"28 . Hoffman saw Brown "have Mr. Ohlsen step out of the vehicle and she escorted him to the front of the -- of his vehicle"29 . Hoffman returned to the defendant's car, Brown "indicated to [Hoffman] that she also detected the odor of marijuana"30 , and Hoffman "had a conversation with him again in reference to the fact that we would be searching the vehicle and at that point in time I gave him the opportunity to tell us if there was anything in the vehicle"31 The defendant admitted that there "was a smoking device between the driver's seat and the center console that contained marijuana"32 . Hoffman told the grand jury...
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