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People v. Leary

Other Lower Courts

December 31, 2007

The People of the State of New York, Plaintiff,
v.
Patrick J. Leary, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Thomas P. Halley, Esq., Attorney for Defendant

William V. Grady., Esq.Cindy Murphy, Esq., Of Counsel, Dutchess County District Attorney

OPINION

David L. Steinberg, J.

The defendant, Patrick J. Leary, is charged with two counts of Driving While Intoxicated in violation of VTL 1192 (2), (3), and Speeding in violation of VTL 1180(d). A pre-trial hearing was ordered to determine defendant's motion to suppress. On March 23, 2006, a Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including chemical test results and statements.

The sole witness at the hearing was Trooper Peter W. McSorley, Jr. of the New York State Police who testified on behalf of the People. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

Findings of Fact

On the evening of December 3-4, 2005, Trooper McSorley was on patrol in a marked State Police patrol car (1K33) working the "2 Tour" shift from 7:00 p.m. on December 3rd to 7:00 a.m. on December 4th. In the middle of the shift from 12:00 a.m. to 5:00 a.m., he was partnered with Trooper Jonathan Burleigh in the same trooper car, with Trooper McSorley driving and Trooper Burleigh in the passenger seat. At 1:30 a.m., they were driving southbound on Route 9 just north of the Culinary Institute of America when Trooper McSorley saw a 1997 Ford red pick-up truck pass them heading northbound on Route 9. Based on both his visual estimate and radar, the pick-up truck was going 67 mph where the speed limit is 45 mph. The radar unit in the State Police car, when activated, displays the speed of both the police car and the other car in the target zone. There was no other car between Trooper McSorley's car and the Ford pick-up being observed on radar.

Trooper McSorley turned around his police car and followed the truck up Route 9 where he observed it make a left hand turn past St. Andrews Road into the parking lot of the Toucan Bar Grill. He activated his emergency lights and both Trooper McSorley and Trooper Burleigh approached the pick-up truck which contained four occupants. Trooper McSorley asked the driver for his license and registration which he produced. The driver was the defendant, Patrick J. Leary, age 20. He had a strong odor of alcohol coming from his breath, and his eyes were glassy, watery, and bloodshot. When asked where he was coming from, he replied from home. When asked whether he had been drinking, he responded "I had a few beers" and then said, "I had two beers." At that point, Trooper McSorley asked him to exit his vehicle. When he did so, he appeared to be swaying as he walked towards the trooper, and had trouble standing. He was swinging back and forth and was staggering a little. At some point prior to arrest, defendant further stated, "I know I shouldn't have been driving." No Miranda rights were given to the defendant at the scene.

Trooper McSorley then administered four field sobriety tests in the northern parking area of the Toucan Bar Grill. Prior to doing so, the trooper asked defendant if he had any physical limitations or wore contact lens. The defendant answered no to both questions. The tests were conducted in the parking lot on ground that was relatively flat without rocks or large pebbles.

Defendant was first given the Horizontal Gaze Nystagmus test. The defendant failed the test in that his eyes lacked smooth pursuit at maximum deviation. His eyes were involuntarily jerking, and he seemed to have a difficult time focusing on the pen object held by the trooper.

The defendant did better on the walk and turn test by walking nine steps in a straight line. He used his arms to balance himself, but his performance ...


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