Justice Court of the Town of Penfield, County of Monroe, July 16, 2018

Christopher Schiano, Rochester, for defendant.

Sandra J. Doorley, District Attorney, Rochester (Safa Robinson of counsel), for plaintiff.

Defendant was arraigned in Penfield Town Court on charges of driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]); following too closely (Vehicle and Traffic Law § 1129); refusal to take a breath test (Vehicle and Traffic Law § 1194); and failure to notify the Department of Motor Vehicles of an address change (Vehicle and Traffic Law § 509 [8]). The accusatory instruments allege that the offenses occurred on October 6, 2017.

The court thereafter granted defendant's request for a probable cause hearing to determine whether there was sufficient cause to arrest him for driving while intoxicated and a Huntley hearing to determine the admissibility of statements he allegedly made to law enforcement. The People's only witness at the pretrial hearings testified that the offenses occurred on October{**60 Misc 3d at 930} 16, 2017. Defendant contends that the 10 day discrepancy between the date alleged in the accusatory instruments and the proof at the hearing entitles him to suppression of the evidence. Defendant further contends that he is entitled to suppression on the ground that the evidence was obtained by means of an unlawful search and seizure in violation of his rights under the Fourth Amendment to the United States Constitution.

The court now makes the following findings of fact and conclusions of law.

Deputy Joseph Massaad of the Monroe County Sheriff's Office testified that on October 16, 2017, he was on patrol in the Town of Penfield when he heard a radio report concerning a motor vehicle accident near the intersection of Empire Boulevard and [*2]Plank Road. The radio report indicated that one of the drivers was possibly intoxicated. Massaad doesn't recall when he heard the report, nor does he recall how much time elapsed from the time he heard the report to the time he arrived at the scene.

Upon arrival, Massaad observed a car and a truck that had apparently been involved in a motor vehicle accident. At least two police vehicles were at the scene when he arrived, but he does not recall whether any other emergency vehicles were there. He does not know what time the accident occurred or when the other officers arrived.

Massaad had a conversation with Deputy Mahoney. He does not have a specific recollection of what Mahoney told him, other than that there was an individual in the backseat of Mahoney's police vehicle who was the driver of the truck involved in the accident. Massaad does not know how long the individual had been in the police vehicle. Massaad does not recall if Mahoney advised him of any statements the individual made about his consumption of alcohol. There is no testimony that Mahoney told Massaad he believed the individual was impaired.

Massaad asked the individual, later identified as defendant Ethan Testa, to step out of the police vehicle. After defendant stepped out of the vehicle, Massaad detected an odor of alcohol on defendant's breath and observed that his eyes were bloodshot and glassy and his speech slurred. Massaad advised defendant that he was not under arrest. Massaad asked defendant if he was the driver and sole occupant of the truck{**60 Misc 3d at 931} involved in the accident. Defendant said that he was. Massaad then asked defendant if he had anything to drink. Defendant replied, "[t]wo drinks at the Barrel."

Defendant failed three field sobriety tests and refused to submit to a breath test to determine whether he had consumed alcohol. Massaad placed defendant under arrest and transported him to a nearby parking lot where a chemical test of his breath was administered by Deputy O'Keefe in the Sheriff's STAR van.

Defendant was advised of his Miranda rights after he was arrested and transported to the STAR van. The People do not seek to introduce any post-Miranda statements.

[1] The accusatory instruments allege that the offenses were committed on October 6, 2017. Deputy Massaad, the only witness the People called at the suppression hearings, testified that the offenses occurred on October 16, 2017. Defendant contends that the 10 day discrepancy between the date alleged in the accusatory instruments and the People's proof at the pretrial hearings entitles him to suppression of the evidence. The court disagrees.

First, it should be noted that defendant does not cite, and research does not reveal, any cases where a court granted suppression based on a discrepancy between the date of the offense alleged in the accusatory instrument and the date testified to at a pretrial suppression hearing.^[FN1]

Next, it is well settled that a court may only grant suppression on one of the grounds set forth in CPL 710.20. In People v Bridges (226 AD2d 471 [2d Dept 1996]), defendant moved to suppress his written statement because it was a summary rather than a word-for-word recitation of defendant's answers to questions posed by police. The trial court properly denied the motion because that ground is not among the authorized grounds to suppress evidence under CPL 710.20. Similarly, in People v El-Khawam (24 Misc 3d 133[A], 2009 NY Slip Op 51387[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]), the {**60 Misc 3d at 932}court denied defendant's motion to suppress because the ground asserted, an insufficient chain of custody, is not among the authorized grounds to suppress evidence. And, in People v Niemann (21 Misc 3d 136[A], 2008 Slip Op 52221[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]), defendant's motion to suppress chemical test results on the ground that the test was improperly conducted and therefore without probative value was denied because that ground is not among the authorized grounds to suppress evidence. The ground asserted in this case, that there exists a discrepancy regarding the date of the offenses set forth in the accusatory instruments and the People's proof at a pretrial hearing, is not one of the grounds to suppress evidence set forth in CPL 710.20. Consequently, defendant is not entitled to suppression on that ground.

The conclusion that the discrepancy as to the date of the offenses does not entitle defendant to suppression finds support in cases describing a court's authority to disregard or correct such discrepancies at other stages of a criminal proceeding. For example, it has been held that a court may disregard an apparent error regarding a material date in an affidavit in support of a search warrant application where a commonsense reading of the affidavit permits the inference that the date was, in all likelihood, a mistake (Commonwealth of Pennsylvania v Leed, 186 A3d 405 Pa Sup Ct [2018]).

The cases permitting amendment of an accusatory instrument also suggest that suppression of the evidence is not warranted here. CPL 200.70 permits the amendment of an indictment at any time before or during trial with respect to defects, errors or variances relating to time, place, names of persons and the like. That provision has been held to apply to a misdemeanor information as well (People v Kurtz, 175 Misc 2d 980 [Crim Ct, Queens County 1998]). Thus, an accusatory instrument may be amended to correct a typographical error in the date charged (People v Burns, 68 AD3d 1246 [3d Dept 2009]); to correct an inaccurate date charged (People v Palmer, 152 AD2d 924 [4th Dept 1989]; People v Hankins, 265 AD2d 572 [2d Dept 1999]); or to conform the date set forth in the accusatory instrument to the proof at trial (People v Walker, 125 AD3d 1507 [4th Dept 2015]). Even in the absence of a motion to amend, it is not error for the court to charge the jury that it may disregard minor variances as to the time of the offense (1 CJI[NY] 8.01; People v Williams, 24 AD3d 882 [3d Dept 2005]; People v Boyce, 2 AD3d 984 [3d Dept 2003]).{**60 Misc 3d at 933}

A court's authority to permit the People to reopen their case to correct a deficiency in proof also supports the conclusion that the evidence should not be suppressed. In People v Whipple (97 NY2d 1 [2001]), a DWI prosecution, the People rested without submitting proof of the number of spaces in a parking lot, a necessary element to establish that it was a public lot. The Court of Appeals held that the trial court did not err in allowing the People to reopen their case to prove the missing [*3]element. Similarly, in People v Diehl (128 AD3d 1409 [4th Dept 2015]), it was held that the trial court did not abuse its discretion in allowing the People to reopen their proof to properly identify defendant. That authority would surely permit a court to allow the People to reopen their case to correct a minor variance regarding the date of the offense.

If an error regarding the date of the offense can be cured at other stages of the process by inference, amendment, jury instruction, or by an order reopening the case, it would be incongruous to hold that an error regarding the date of the offense at the pretrial hearing stage is fatal.

Finally, it should be noted that appellate courts have consistently held that where, as here, the time of the offense is not an essential element of the charged crimes, the prosecutor's failure to prove the exact date and time does not render the evidence legally insufficient (see People v Haust, 134 AD2d 916 [4th Dept 1987] [time is not a material element of the crime of driving while intoxicated, and therefore the prosecutor is not confined to the precise date set forth in the indictment]; see also People v Erle, 83 AD3d 1442 [4th Dept 2011]; People v Davis, 15 AD3d 920 [4th Dept 2005]). In the rare case where a court has concluded that a variance as to time was error, the defendant was able to demonstrate that he was prejudiced by the variance (People v Bigda, 184 AD2d 993 [4th Dept 1992]; cf. People v Gagner, 59 AD3d 963 [4th Dept 2009]). Here, there is no prejudice to defendant. The accusatory instruments indicate that the offenses occurred on October 6, 2017. The bill of particulars states that "the incident occurred on or about October 6, 2017 at approximately 9:08 pm on Empire Blvd/Plank Road in the Town of Penfield." Defendant's motion papers challenged the constitutionality of the police action surrounding his arrest, not the date of the incident. Under these circumstances, defendant cannot complain that he was deprived of fair notice of the accusations against him or that his ability to prepare a defense was hampered, nor could he seriously{**60 Misc 3d at 934} contend that there is a possibility he could be convicted of a crime that was not charged (People v Downey, 158 AD3d 1198 [4th Dept 2018]; People v Luscomb, 68 AD3d 1548 [3d Dept 2009]).

Accordingly, defendant is not entitled to suppression of the evidence based on the discrepancy in the date alleged in the accusatory instruments and the proof at the pretrial hearings.

[2] Next, the court considers defendant's contention that he is entitled to suppression of any evidence obtained, including statements, on the ground that the evidence was obtained by means of an unlawful search and seizure. "Although a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance" (People v Lazcano, 66 AD3d 1474, 1475 [4th Dept 2009]). In evaluating the legality of the police conduct, the court must determine whether the action was justified at its inception and at every subsequent stage of the encounter (People v Nicodemus, 247 AD2d 833 [4th Dept 1998]). The seizure must be related in scope, including its length, to the circumstances which justified the detention in the first instance (People v Banks, 85 NY2d 558 [1995]; People v Barreras, 253 AD2d 369 [1998]).

The court concludes that the People did not meet their burden of going forward to show the legality of the police conduct in the first instance.

Defendant was in the backseat of a police vehicle when Massaad arrived. The record is devoid of any evidence regarding the initial encounter between defendant and police. Was defendant in his vehicle, in the vicinity, or had he left the scene when he was first approached by police? Additionally, the People presented no evidence detailing the manner in which defendant was placed in the police vehicle. Was a show of force necessary to secure his presence in the police vehicle? And critically, the People presented no evidence as to how long defendant was in the vehicle.^[FN2]

Courts have consistently held that a defendant is entitled to suppression where, as here, there is no testimony from a police{**60 Misc 3d at 935} officer with firsthand knowledge of the initial police-citizen encounter (Gary Muldoon, Handling a Criminal Case in New York § 9:110 [2017]). In People v Mercado (197 AD2d 898 [4th Dept 1993]), the Court suppressed statements obtained from defendant at a police station, citing the People's failure to present any witness with firsthand knowledge concerning the legality of the police conduct in securing defendant's presence at the police station in the first instance. A similar result was reached in People v Rojas (163 AD2d 1 [1st Dept 1990]), where it was held that the trial court properly granted defendant's motion to suppress because the only officer who testified at the hearing arrived at the scene after defendant was already being held at gunpoint; there was no showing that the officer who held the suspect at gunpoint was justified in doing so. People v Moses (32 AD3d 866 [2d Dept 2006]) also illustrates the point. In Moses, a burglary victim was transported to a location where defendant was being detained by police for purposes of conducting an identification procedure. The People's failure to call the officers who detained defendant resulted in suppression because the prosecution failed to establish that the defendant was lawfully stopped and detained before the complainant made her identification.

Here, the People's failure to call any witnesses with firsthand knowledge of the circumstances leading to defendant's detention in the back of the police vehicle requires suppression. The hearsay statements that Massaad attributed to Mahoney fall far short of demonstrating that police acted lawfully in seizing defendant, placing him in the police vehicle and detaining him in the vehicle for an unknown period of time (see People v Moses, 32 AD3d at 868 ["the vague and equivocal hearsay testimony of the arresting officer concerning a statement made by one of the plainclothes officers was inadequate to demonstrate that the defendant's presence at the scene was lawfully obtained"]).

In sum, based on the evidence presented at the pretrial suppression hearings, it cannot be said that the police action was{**60 Misc 3d at 936} justified at its inception and at every subsequent stage of the encounter. Accordingly, defendant's motion to suppress any evidence obtained as a result of the unlawful search and seizure is granted.