People v. Cooper (Nickolas)

People v Cooper (2021 NY Slip Op 50711(U)) [*1] People v Cooper (Nickolas) 2021 NY Slip Op 50711(U) [72 Misc 3d 134(A)] Decided on July 22, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on July 22, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, TIMOTHY S. DRISCOLL, JJ 2019-1687 D CR The People of the State of New York, Respondent, against Nickolas Cooper, Appellant. Dutchess County Public Defender (Jennifer Burton of counsel), for appellant. Dutchess County District Attorney (Anna K. Diehn of counsel), for respondent. Appeal from a judgment of the Justice Court of the Village of Wappingers Falls, Dutchess County (Susan Sullivan-Bisceglia, J.), rendered October 22, 2019. The judgment convicted defendant, upon his plea of guilty, of driving while ability impaired, and imposed sentence. The appeal brings up for review an order of that court dated September 26, 2019 denying defendant's motion to suppress evidence. ORDERED that the judgment of conviction is affirmed. Defendant was charged in simplified traffic informations with, respectively, driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]). Subsequently, a Dunaway/Huntley/Mapp hearing was held, during which defendant argued to the Justice Court that his initial seizure during the traffic stop, and a second seizure thereafter, were both unlawful. At the hearing, the arresting officer, Trooper Lavarnway, testified that, while on vehicular patrol at approximately 2:20 a.m. on October 7, 2018, he and his partner, Trooper Winkelman, observed two vehicles driving slowly together. The license plate light of one of the vehicles was defective, and the troopers effected a traffic stop of that vehicle. However, both vehicles pulled over. Trooper Lavarnway approached the vehicle with the defective light, and Trooper Winkelman approached the second vehicle, driven by defendant. As Trooper Lavarnway conversed with the driver of the offending vehicle, Trooper Winkelman flashed a sign that Trooper Lavarnway understood to mean that defendant appeared intoxicated. Trooper [*2]Lavarnway testified that, based solely on his partner's hand gesture, and without having yet observed defendant, he already knew that he would be investigating whether defendant was driving while intoxicated, and he stated that defendant was not free to leave. Trooper Lavarnway testified further that, after performing a computer check of the offending vehicle, he permitted the driver of that vehicle to drive away and joined Trooper Winkelman at defendant's vehicle. Trooper Lavarnway smelled the odor of alcohol emanating from defendant, and he observed that defendant slurred when answering questions. He ordered defendant to exit his vehicle and observed that defendant had trouble keeping his balance. Defendant failed each of three standardized field sobriety tests, and a preliminary breath test indicated the presence of alcohol. Trooper Lavarnway then placed defendant under arrest. Following the hearing, the Justice Court, by order dated September 26, 2019, denied defendant's suppression motion. Because defendant stopped his vehicle along with the offending vehicle, the troopers were permitted to approach and inquire, "[i]n light of the heightened dangers faced by investigating police officers during traffic stops" (People v Garcia, 20 NY3d 317, 321 [2012]). Soon after arriving at defendant's vehicle, Trooper Winkelman communicated a sign that Trooper Lavarnway unequivocally understood to mean that defendant may be intoxicated. Thus, Trooper Winkelman "acquired founded suspicion [that criminal activity was afoot] before the initial justification for detaining defendant had been exhausted" (People v Coutant, 16 AD3d 772, 774 [2005]), and the short delay before Trooper Lavarnway could join him at defendant's vehicle did not render the seizure unlawful (see People v Edwards, 14 NY3d 741, 742 [2010] ["as a matter of law, the officers did not inordinately prolong the detention beyond what was reasonable under the circumstances"]). Trooper Lavarnway observed signs of intoxication and, upon further investigation, possessed reasonable cause to arrest defendant for driving while intoxicated. At the hearing, defendant testified that, at the police barracks, Trooper Winkelman asked him if he would consent to chemical testing of his breath. Defendant further testified that he had wanted to speak with a lawyer he already knew before deciding whether to submit a breath sample. He told the troopers that "I wasn't sure, am I able to talk to a lawyer? . . . They said no. I said I cannot talk to my lawyer and they said no." However, the troopers did permit defendant to call his mother, who is not an attorney. Defendant testified that, while he and his mother were conversing, Trooper Winkelman "took the phone and then said [to defendant's mother], 'If he doesn't take this [chemical test], he's going to be in trouble.' And he pretty much told me to take it." Thereafter, defendant submitted a breath sample for chemical testing. Trooper Winkelman testified in rebuttal that, at the barracks, defendant never requested an attorney and only asked to call his mother, which request the trooper granted. At some point, defendant's mother asked to speak to an officer. Trooper Winkelman testified that he spoke with her for about 5-10 minutes, during which time he read the refusal warnings to her and explained the possible repercussions of a refusal. The trooper testified that, afterward, defendant and his mother spoke again for a few minutes, and, thereafter, defendant consented to submit a breath sample. Defendant did not argue to the Justice Court that the troopers violated his limited right to the advice of counsel concerning whether to submit to chemical testing of his breath (see People v Smith, 18 NY3d 544, 549-550 [2012]). He does so for the first time on appeal. However, as [*3]"[d]efendant failed to raise that specific contention in his motion papers or at the suppression hearing as a ground for suppressing the results of the chemical test, . . . he failed to preserve that contention for our review" (People v Russ, 183 AD3d 1238, 1239 [2020]). In any event, we find no basis to disturb the Justice Court's determination that the trooper's testimony was credible and reliable. Accordingly, the judgment of conviction is affirmed. RUDERMAN, P.J., GARGUILO and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 22, 2021