Recent Court Victories
Welcome to our blog at New York Criminal Law and DWI Defense presented by the Law Offices of Michael Pollok, PLLC. We will be publishings updates on New York Criminal Law and DWI defense, including court decisions on cases that we are handling or involved in and decisions of interest trending in the law.
Our practice focuses on all types of local, state and federal criminal defense cases mainly in New York's Hudson Valley area. We primarily cover criminal cases in Dutchess County, Ulster County, Columbia County, and Greene County. We occasionally handle criminal cases in Albany County, Putnam County and New York City.
Here are some sample decisions we won for our clients:
People v Schoonmaker, 44 Misc 3d 1201(A) [Just Ct 2014]
JONAH TRIEBWASSER, J.
Procedural History
*1 On December 22, 2013, defendant was arrested for Driving While Intoxicated in violation of section 1192(3) of the Vehicle and Traffic Law (VTL), Refusal to Take a Breath Test in violation of section 1194(1)(b) VTL and Failed to Maintain Lane in violation of section 1128(a) VTL. The charge of refusal to take the breath test was dismissed upon the People's motion on May 16, 2014.
A probable cause hearing was held on May 16, 2014. The People were represented by Senior Assistant District Attorney Kevin P. Irwin, Esq. Defendant was represented by Michael Pollok, Esq.
Officer's Testimony
With a candor that is commendable, Officer David Schaller of the Village of Red Hook Police testified that he effectuated a stop of defendant's vehicle after he observed defendant make one erratic movement over the “fog line.”1 On cross examination, the officer testified that defendant only crossed the fog line once, did not cross the double yellow line and did not weave his vehicle.
Based upon his observation of the vehicle crossing the fog line, Officer Schaller stopped defendant's vehicle. The officer detected the small of alcohol emanating for the vehicle. Defendant was asked to perform field sobriety tests, which he failed. Defendant was then asked to submit to a preliminary breath test which showed a positive reading for alcohol. He was then asked to submit to the full chemical test, which he refused. He was then placed under arrest.
Defendant's Contention
No Probable Cause for the Stop
Defendant contends that there was no probable cause for the stop as crossing the fog line is not a VTL offence and, therefore, all observations and actions subsequent to what he contends was an illegal stop should be excluded from consideration by this Court. The People are in general opposition.
Court's Decision
The crossing of a solid white line is discouraged, but not prohibited (see 17 NYCRR §§ 261.2, 261.5[c]; § 261.7[a]; People v. Hollinger, 2002 N.Y. Slip Op 40485[U] [App Term, 9th & 10th Jud Dists] ), People v. Shulman, 14 Misc.3d 129 (App Term, 9th & 10th Jud Dists)
In People v. Fisher, 20 Misc.3d, 1136, the Court was quite clear as to the standard to be applied in cases of this nature:
It has long been the law that people have the right to be protected against unreasonable search and seizures. This right has been applied not only to homes and persons, but also to vehicles. The Court of Appeals in People v. Spencer, 48 N.Y.2d, 749, Cert. denied 516 U.S. 905 enunciated this proposition when as part of its [d]ecision it stated “We have stated, time and again that the stop of an automobile is a seizure implicating constitutional limitations,” (citations omitted).
The Court of Appeals recently addressed this issue in some depth in People v. Robinson, 97N.Y.2d341. In that case the court stated that, “We hold that where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate ... the New York State Constitution. In making the determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant.” The court ... discussed in great detail pretextual stops and concluded that any violation of the Vehicle and Traffic Law is sufficient to give a police officer the right to stop a vehicle. The court stated, “This court has always evaluated the validity of a traffic stop based on probable cause that a driver has committed a traffic violation ... without regard to the primary motivation of the police officer or an assessment that a reasonable traffic officer would have made the same stop. Where the police have stopped a vehicle for a valid reason, we have upheld police conduct without regard to the reason for the stop (People v. David L., 81 A.D.2d 893, 439 N.Y.S.2d 152, revd on dissent below 56 N.Y.2d 698 {1982, 451 N.Y.S.2d 722, 436 N.E.2d 1324}, cert. denied 459 U.S. 866, 103 S.Ct. 146, 74 L.Ed.2d 123).”
*2 It is impossible for this court to read the Court of Appeals Decision in People v. Robinson, supra, in any manner other than imposing a duty on a police officer to have probable cause to believe that the operator of a motor vehicle was about to commit a crime, was committing a crime or a vehicle and traffic infraction as a necessary predicate for stopping a driver on a public highway. Indeed the court stated, “We noted that police stops of automobiles in this State are legal only pursuant to routine nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime' (id., at 753)”.
This court is bound by the Decision of the Appellate Term Second Department as reported in People v. Shulman 14 Misc. 3rd, 129a. In that case the trial court found that the defendant violated section 1128[ ... ] of the Vehicle and Traffic Law in that the defendant while operating a motor vehicle crossed the solid white line which separated his lane from the pavement, “the fog line.” The Appellate Term in reversing the [lower] court held, “crossing a fog line is not prohibited and does not constitute a violation of the New York State Vehicle and Traffic Law.” For the reasons articulated, supra, it is the ruling of this Court that the officer did not have probable cause to stop defendant. Defendant's motion is granted in toto. The remaining charges in this case are dismissed.
This decision also constitutes the Order of this Court.
SO ORDERED.
JONAH TRIEBWASSER, J.
*1 By Notice of Motion dated March 5, 2015, defendant, through his attorney Michael Pollok, Esq., requests the relief which is detailed below.
The People, through their attorney, Senior Assistant District Attorney Margaret Walker, responded on March 26, 2015, as detailed below. Defendant had the opportunity to file a reply, but declined to do so. Neither side requested oral argument and the motion was marked fully submitted on April 6, 2015.
Lack of Facial Sufficiency
Defendant seeks to dismiss the misdemeanor information herein alleging violation of section 130.52 of the Penal Law (Forcible Touching) as being facially insufficient pursuant to sections 100.15 of the Criminal Procedure Law of the State of New York (CPL). The People deny that the information was facially insufficient.
The information was in the name of the alleged victim. However, it is now brought to the Court's attention that this information was in fact signed by Trooper Daniel Scali of the New York State Police. This renders this information to be defective on its face and it is dismissed pursuant to section 100.15 CPL which requires, intra alia, that the information “... must be subscribed and verified by a person known as the complainant.” ' As the complainant herein (the alleged victim) did not subscribe and verify this information, it is dismissed as defective on its face.
Speedy trial issue
The information alleging unlawful imprisonment in the second degree in violation of section 135.05 of the Penal Law was brought in the name of and was signed by Trooper Scali. However, Trooper Scali notes that the allegations of fact in the information were based on the supporting deposition of the alleged victim, which was attached to the information. The supporting **2 deposition submitted to the court with the Trooper's information on November 20, 2014, was unsigned. A signed copy of the supporting deposition was not submitted to the Court until February 26, 2015, some 98 days later.
CPL Section 100.40 requires that:
1. An information, or a count thereof, is sufficient on its face when: (a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; (emphasis added )
The information here was defective in that the supporting deposition upon which the complainant trooper relied was unsigned, and was therefore a nullity. As the People concede, pursuant to section 30.30 CPL, the speedy trial clock begins to tick against the People where, as here, the defendant appears in Court for arraignment on the return date of the appearance tickets (such appearance in the case at bar occurred on November 20, 2014.) People v. Parris, 79 N.Y.2d 69 (1992). Ninety-eight days passed before the defect in the information was cured. This requirement (of proper jurisdiction), is of constitutional dimension, and is not waivable (see, People v. Scott, 3 N.Y.2d 148 (1957), even by defense counsel consenting to adjournments.1 The objection that the information does not state a crime is also not waivable. Scott, op. cit.
*2 Section 30.30 requires that the People stand ready for trial within 90 days where, as here, defendant was accused of a misdemeanor. Inasmuch as the information was fatally defective during, and past, this 90 day period, it is dismissed.
Having dismissed the informations herein for the reasons articulated, supra, the Court sees no need to address defendant's other contentions.
This decision also constitutes the Order of this Court.
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