his opinion concerning the proper organization of the new E-911
system in the County of Putnam.
The events leading up to the December 2, 1994 arrest, viewed
most favorably to the Plaintiff, as they must be, are set forth
below. On Friday, December 2, 1994, Ten Eyck was on motor patrol
westbound on State Route 6 at a location three miles from the
Middlebranch, between the Middlebranch and the Plaintiffs home,
when he observed a Camaro automobile traveling eastbound which
had a non-functioning headlight. TT at 488 The vehicle also was
speeding as confirmed by radar. Ten Eyck turned his vehicle
around and stopped the Camaro. While he was standing in the road
at the driver's side door of the Camaro investigating those
traffic violations, Sergeant Lindert, on a supervisory tour,
came to the scene in his vehicle and parked across the street.
He observed that a passing eastbound white car almost hit Ten
Eyck, and instructed him to "go get it." Officer Ten Eyck gave
back the license to the operator of the Camaro and "told him to
slow down and get his headlight fixed."
The passing vehicle was, as the reader has anticipated,
operated by Mr. Leather, who was on his way home from the
Middlebranch with his wife, having engaged in his regular Friday
evening activities. While Mr. Ten Eyck denied under oath that he
recognized the vehicle, and it was 9:00 p.m. at the time, and
dark, there were lights from the two police vehicles and the
passing traffic. Sufficient circumstantial evidence exists in
the record to warrant an inference by the jury that Lindert and
Ten Eyck at the very least knew it was a County owned vehicle
with two people in it, and reasonably believed that it might be
driven by John Leather, and that, in accordance with his usual
weekly custom, he was very likely driving home from the
Middlebranch. The County owned vehicles are white, they are of
the same make and model, and the license plate series used for
the County vehicles is known to law enforcement officers.
Furthermore, John Leather's County owned vehicle had a red fire
coordinator's insignia on the front identifying it as Car No. 1.
TT at 270-271. Mr. Leather's County car also had a plate above
the official plate which read, "All county fire and EMS
equipment." TT at 426.
Releasing and leaving a known speeding violator with a
defective headlight, Lindert and Ten Eyck both "took off after
the vehicle." They followed the Leather vehicle and the car
behind it for some distance, and after a half mile observed
Leather make a left hand turn onto North Main Street in
Brewster. Ten Eyck observed that the vehicle crossed the double
yellow line in violation of N.Y. V & T § 1126(a), an offense of
which John Leather was later convicted in his trial before
Justice Vercollone of the Town of Southeast, at the same time
that he was convicted for DWAI (V & T § 1192.1).
Radioing Sergeant Lindert to the effect that he was going to
make a traffic stop. Ten Eyck activated the overhead lights and
alternate headlights on his vehicle, turned on the siren and
blow his airhorn. Eventually, the vehicle pulled over on Paddock
Lans at North Brewster Road and immediately after the stop, Mr.
Ten Eyck observed Mr. Leather come out of his vehicle and walk
towards the police car. The officer observed a strong odor of
alcoholic beverage on his breath, glassy eyes, and that he was
leaning on the back of the car. Plaintiff admitted that he had
had "a couple of drinks at the Middlebranch Restaurant" and the
deputy performed a field sobriety test. John Leather asked for
professional courtesy (TT at 498) and Sergeant Lindert, who had
arrived at the scene by that time "told him to exercise his
Miranda rights and be quiet, call a lawyer and not to say
anything." A blood test was taken within the two hour period
permitted by § 1194(2)(a)(2), and traffic tickets were issued
for crossing the double yellow line and for DWI. The blood test
was returned at .09 per cent blood alcohol,
sufficient to support a prima facie case for DWAI, but not
sufficient to support a prima facie case for DWI.*fn3
Thereafter, there was a bench trial in the Town of Southeast
Justice Court before Justice Vercollone on June 29, 1995 and
July 6, 1995, followed by a conviction on August 2, 1995 for
DWAI and crossing the double yellow line. No appeal was taken.
This Court previously concluded that the issue of selective
enforcement, an absolute defense to a criminal prosecution in
New York, had been raised and adjudicated in the trial before
Justice Vercollone. The Court of Appeals held otherwise. Mr.
Leather testified at this trial as follows:
Q. (By Mr. Seymour) [D]idn't you, in fact, raise
through your attorney the issue of selective
enforcement at your criminal trial?
A. That issue was raised by my attorney,
definitely, yes. (TT at 398)
Whether Mr. Leather did in fact raise the issue of selective
prosecution sufficiently to bar that claim in this subsequent
litigation by reason of his conviction is purely an issue of
law. That issue has been resolved adversely to the defendants by
our Court of Appeals. Leather v. Ten Eyck,