                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 14, 2016                      107167
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

JOSEPH A. BACK II,
                    Respondent.
________________________________


Calendar Date:   February 16, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                               __________


      Mary E. Rain, District Attorney, Canton (Joshua A.
Haberkornhalm of counsel), for appellant.

      Law Office of Lorraine M. White, Akwesasne (Vaughn N.
Aldrich of counsel), for respondent.

                               __________


Lynch, J.

      Appeal from an order of the County Court of St. Lawrence
County (Richards, J.), entered October 3, 2014, which granted
defendant's motion to dismiss the indictment.

      While driving on State Route 37 in the Town of Massena, St.
Lawrence County, defendant was involved in a car accident with
another motorist who sustained serious injuries. The accident
occurred approximately one fourth of a mile west of the St. Regis
Mohawk Reservation boundary. After being notified of the
accident by their dispatcher, two St. Regis Mohawk Tribal police
officers were the first officers to arrive at the scene of the
accident. Upon their arrival, witnesses at the scene identified
defendant, who was out of his car and walking on the road, as a
                              -2-                107167

driver involved in the accident. At the request of the State
Police, members of the St. Regis Mohawk Tribal Police Department
(hereinafter SRMTPD) detained defendant, placed him in handcuffs
and transported him to a nearby hospital. The State Police met
defendant and the SRMTPD officers at the hospital, where a blood
sample was taken. Forensic testing later revealed that
defendant's blood alcohol content was .28%.

      Defendant was thereafter charged in a nine-count indictment
with assault in the first degree, assault in the second degree,
vehicular assault in the first degree, vehicular assault in the
second degree (two counts), aggravated driving while intoxicated
and driving while intoxicated (two counts). In his omnibus
motion, defendant, among other things, moved to dismiss the
indictment pursuant to CPL 210.20 (1) (h), "by reason of the
unlawful and illegal arrest and detention of the defendant" and
on the ground that the evidence submitted to the grand jury was
not legally sufficient (see CPL 210.20 [1] [b]). County Court
determined that, "[a]s a matter of law," the SRMTPD was neither
authorized to detain and arrest defendant nor to effect a
citizen's arrest and dismissed the indictment. The People now
appeal.

      The SRMTPD exists pursuant to statute (see Indian Law
§ 114). Its members may be appointed by the Superintendent of
the State Police after satisfying minimum police training
standards (see Indian Law § 114 [2], [6]). Further, "[a] person
appointed a police officer under [Indian Law § 114] shall only be
permitted to exercise the duties or functions of a police officer
within the County of Franklin, and within that county, only
within the boundary of the St. Regis reservation" (Indian Law
§ 114 [8]). A member of the SRMTPD is a "police officer" (CPL
1.20 [34] [u]) who has "all powers provided for in the [C]riminal
[P]rocedure [L]aw, except for those powers specifically excepted
by this section, for the preservation of order and of the public
peace, and the arrest of all persons committing offenses upon the
St. Regis Mohawk tribal reservation" (Indian Law § 114 [2]).

      Here, defendant was arrested in St. Lawrence County, not on
the St. Regis reservation. After arguing that he was arrested by
members of the SRMTPD and that the SRMTPD did not have any police
                              -3-                107167

powers in St. Lawrence County, defendant sought an order
dismissing the indictment, or, alternatively, a hearing to
determine whether the arrest was unlawful. In support of the
motion, defendant submitted the supporting deposition by
Investigator Decota Thompson of the SRMTPD. Thompson averred
that when he arrived on the accident scene, another motorist
pointed out that defendant was walking from the scene and that he
observed defendant "gesturing to his abdomen and moaning as
though he was in pain." An ambulance was summoned. Thompson
averred that, because defendant kept trying to leave the scene,
he was handcuffed and placed in a SRMTPD patrol car. When the
State Police arrived at the scene, they decided that, rather than
wait for the ambulance, the SRMTPD should transport defendant
directly to the hospital. County Court dismissed the indictment,
finding that the SRMTPD had "no authority to use police powers
beyond the boundaries of the reserve" and that it could not make
a citizen's arrest.

      We agree with the People that County Court should not have
summarily dismissed the indictment. Initially, the court should
not have determined the issues presented as a matter of law
because the People did not concede that the SRMTPD arrested
defendant (compare People v Herne, 41 Misc 3d 1086, 1090-1091
[2013]). Further, we do not agree that the limited record
establishes as a matter of law that the SRMTPD officers were
without authority to effect a citizen's arrest (see CPL 140.30,
140.35; compare People v Williams, 4 NY3d 535, 538-539 [2005]).
Finally, even if there was an arrest and it was not authorized,
the remedy would be to exclude evidence obtained from the illegal
arrest, and such exclusion does not necessarily create a legal
impediment to conviction (see People v Gordon, 88 NY2d 92, 97
[1996]; People v Winn, 232 AD2d 438, 439 [1996], lv denied 89
NY2d 948 [1997]).

     McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.
                              -4-                  107167

      ORDERED that the order is reversed, on the law, and matter
remitted to the County Court of St. Lawrence County for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
