People v. Sims
| Decision Date | 27 January 2022 |
| Docket Number | 110375 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Dewey SIMS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mitchell S. Kessler, Cohoes, for appellant.
P. David Soares, District Attorney, Albany (Erin N. LaValley of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.
Colangelo, J. Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered March 15, 2018, upon a verdict convicting defendant of the crime of driving while intoxicated and the traffic infraction of refusal to take a breath test.
In April 2016, defendant was charged by indictment with felony driving while intoxicated (hereinafter DWI) and refusal to take a breath test, a traffic infraction, based upon allegations that, shortly after midnight on April 20, 2016, he operated a motor vehicle while intoxicated and rear-ended a vehicle that was stopped at a stop sign, and thereafter refused to submit to a chemical test. After a combined Huntley/Mapp/Dunaway hearing, County Court found that probable cause existed for the stop of his vehicle and ensuing arrest and denied defendant's motion to suppress his statements and refusal. Following a jury trial, defendant was convicted as charged and thereafter sentenced to a prison term of 1 to 3 years on the DWI conviction and to time served on the remaining conviction. Defendant appeals.
Defendant contends that County Court erred in denying his suppression motion because the stop of his vehicle was not based on probable cause. "The stop of a vehicle by law enforcement ‘is a seizure implicating constitutional limitations’ and, as such, is only permitted when the stop is ‘based upon probable cause that a driver has committed a traffic violation’ " ( People v. Jones, 190 A.D.3d 1013, 1014, 139 N.Y.S.3d 421 [2021], lv denied 36 N.Y.3d 1098, 144 N.Y.S.3d 137, 167 N.E.3d 1272 [2021], quoting People v. Hinshaw, 35 N.Y.3d 427, 430, 132 N.Y.S.3d 90, 156 N.E.3d 812 [2020] ; see People v. Robinson, 97 N.Y.2d 341, 349–350, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ). "Probable cause exists for an officer to effect a traffic stop where the officer observes the traffic violation" ( People v. Jones, 190 A.D.3d at 1014, 139 N.Y.S.3d 421 ). "A suppression court's factual determinations and credibility assessments are entitled to great weight and will not be overturned on appeal unless clearly erroneous or contrary to the evidence" ( People v. Wideman, 192 A.D.3d 1384, 1385, 145 N.Y.S.3d 194 [2021], lvs granted 37 N.Y.3d 1060, 1062, 154 N.Y.S.3d 644, 176 N.E.3d 680 [2021] ).
At the suppression hearing, Justin Ferraioli, an officer with the City of Albany Police Department, testified that, while on routine patrol on April 20, 2016 at approximately 12:35 a.m., he witnessed defendant's vehicle "crash into the rear-end of the first vehicle." Ferraioli activated his emergency lights and "rolled" to the scene, exited his patrol car and approached each vehicle to determine if there were injuries. After determining that the driver of the first vehicle was "fine medically," he approached defendant's vehicle, which was "moving backwards." Ferraioli then asked defendant if he was okay and asked defendant to put the car in park. Defendant indicated that he was fine, but did not put the car in park. Ferraioli testified that defendant put the vehicle in reverse, as though he was going to flee, and Ferraioli reached through the rolled-down driver side window and grabbed defendant's shirt "to get his attention to put the car in park." Ferraioli testified that it took defendant approximately 30 seconds to put the car in park, during which time defendant argued with Ferraioli about putting the car in park and being stopped. Ferraioli testified that defendant behaved aggressively from the start and that defendant's eyes were red. Defendant produced his license but could not find his registration. Believing that defendant was intoxicated, Ferraioli called for assistance and, five or six minutes later, Richard Chu, the DWI enforcement officer and traffic safety officer with the Albany Police Department, arrived on the scene.
Chu approached defendant's vehicle and conducted a brief interview of defendant, during which defendant stated that the driver in front of him stopped short causing the collision, and that he was driving home from his cousin's house where he had only one beer. At the hearing, Chu testified that defendant had "glassy, bloodshot eyes," "[h]is face was like very pink and flush[ed]," "[t]here was an odor of alcoholic beverage emanating from his breath" and "[h]is responses to my questions were very slow, delayed, almost like he was in a confused state." Chu testified that in response to his request that defendant exit the vehicle, defendant "stumbled out of the vehicle." Chu testified that after defendant failed the first two field sobriety tests – the horizontal gaze nystagmus test and the walk-and-turn-test – defendant stated, and he became uncooperative, hostile and aggressive and was yelling. Defendant also refused Chu's request that he submit to a pre-screening Alco-sensor test. Chu arrested defendant for DWI, read defendant his Miranda rights and DWI warnings and transported defendant to the police station. During the booking process at the station, defendant spontaneously stated,
At 1:24 a.m. at the police station, Jared Jourdin, another Albany Police officer, read the following warnings to defendant: Jourdin further advised defendant that "[a]nything other than a yes, including silence, will be considered a no and a refusal." Defendant then stated, "Not without my attorney." Jourdin testified that he then offered to call an attorney for defendant but defendant did not provide him with the name of an attorney to be called. Jourdin then inquired if defendant had an attorney he wanted him to call, to which defendant answered, "No, I will get one on my own." Jourdin then told defendant, "I'll call whoever you want, whatever attorney you want" and defendant replied, "No." At 1:26 a.m., Jourdin read the warning again, and defendant was silent. Jourdin read the warning a third time a short time later and informed defendant that this warning would be the final warning. Defendant again was silent. Defendant never provided a breath sample.
We agree with County Court that the stop of defendant's vehicle was based upon probable cause. Ferraioli's testimony establishes that he witnessed defendant rear-end another motorist and witnessed defendant's car moving backwards, as if he was attempting to leave the scene of the accident. A motorist commits the offense of leaving the scene of an accident without reporting when he or she leaves the scene of a motor vehicle accident having cause to know that property damage has occurred without exchanging driver's licenses and insurance...
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