This case is not published in a printed volume and its disposition appears in a table in the reporter.
D. James O'Neil, Esq., O'Neil Burke, LLP, Esqs. Attorneys for Defendant
William V. Grady, Esq, Allison LaBate, Esq., Of Counsel, Dutchess County District Attorney
David L. Steinberg, J.
The defendant, Matthew Harper, is charged with two counts of Driving While Intoxicated in violation of VTL 1192 (2), (3), and Failure to Keep Right in violation of VTL 1120(a). A pre-trial hearing was ordered to determine defendant's motion to suppress. On September 5, 2007, 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 two witnesses at the hearing were Sgt. Robert J. Benson and Officer Jason Ruscillo of the Hyde Park Police Department, who testified credibly on behalf of the People. Based upon the evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.
Findings of Fact
In the early morning hours of June 7, 2007 at about 1:30 a.m., Sgt. Benson and Officer Ruscillo were on patrol in separate, marked Hyde Park patrol cars working the "A line" tour of duty from 11:00 p.m. to 7:00 a.m. They were dispatched to a domestic incident in progress at the Building 9 of the Hyde Park Ledges apartment complex on Route 9 in the Town of Hyde Park, New York. Upon arrival, they came upon the defendant who was outside the apartment building. He appeared to be very upset and was crying. Sgt. Benson did not recall the defendant showing any signs of intoxication, such as odor of alcohol, stumbling or staggering, glassy or bloodshot eyes. Officer Ruscillo observed the defendant acting in a confused manner. He further detected the odor of alcohol from the defendant and that he had glassy eyes. The officer believed that defendant appeared to be intoxicated.
Further investigation at the scene revealed that the defendant's girlfriend wanted to leave, but he did not want her to go. Defendant told the police that his girlfriend had been drinking alcohol and should not be allowed to drive. The girlfriend's departure was delayed because she was unable to find her cell phone which the defendant stated he had thrown into the bushes. Sgt. Benson assisted for 10-15 minutes in the search for the cell phone. After a fruitless search, the defendant was found to be in possession of the cell phone which was returned to the female. Prior to allowing her to get in her car and drive away, the police gave her an Alco-Sensor test with negative results. No charges were filed against anyone.
After Sgt. Benson left The Ledges, he went to another nearby apartment complex at Royal Crest Apartments located across Route 9 on Scenic Drive. He then observed a gray vehicle with very black windows traveling southbound on Route 9. The windows were so dark that he could not see into the vehicle. While following the vehicle, he observed it cross the yellow line in the middle of the road on three occasions. Each time, the car moved to the left with both tires on the driver's side on the double yellow line in the middle of the road. This occurred in the vicinity of St, James Church, the Hyde Park Town Hall and Dunkin' Donuts. Upon calling in the license plate (Colorado 252 KAJ), it came back as belonging to the defendant, Matthew D. Harper. He pulled over the vehicle, a 2006 Nissan, at about 2:00 a.m. and recognized the driver as the same individual he had encountered at The Ledges. The defendant said he was going to Darby O' Gills, a local bar. The defendant's license and registration was valid. No open containers of alcoholic beverages were observed. Since Sgt. Benson smelled alcohol on defendant's breath, and he had watery, glassy eyes, Sgt. Benson turned the defendant over to Officer Ruscillo for further DWI investigation. He did not administer any Miranda rights at the scene.
Sgt. Benson cited the defendant for Failure to Keep Right in violation of VTL 1120(a). He did not write a ticket for excessive window tint, as the HPPD tint meter at the police station had dead batteries, and he did not want to write the ticket in the absence of corroboration that a tint meter would have provided.
Officer Ruscillo has been a police officer with the Hyde Park Police Department for two years. He has experience and training in DWI detection and has made 30-35 arrests for Driving While Intoxicated. At about 2:00 a.m. on June 7th, he heard over his radio that Sgt. Benson was involved in a traffic stop with the same individual that had been in the domestic incident at The Ledges a short time before. When Officer Ruscillo arrived at the scene, Sgt. Benson turned over the defendant to him for DWI investigation. He spoke with the defendant who advised him he had not been drinking, and was going to Darby O' Gills. Officer Ruscillo observed the defendant to have glassy eyes, slurred ...