        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

668
KA 11-01579
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HERSHEL J. TWOGUNS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered July 29, 2011. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class E felony, failure to drive on right side of road, following too
closely and resisting arrest.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by granting defendant’s omnibus motion
insofar as it sought dismissal of counts two and three of the
indictment and dismissing those counts, and as modified the judgment
is affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of felony driving while intoxicated (Vehicle and
Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]), resisting arrest (Penal
Law § 205.30), and two traffic infractions, defendant contends that
Supreme Court erred in denying that part of his omnibus motion seeking
dismissal of the indictment on the ground that the arresting police
officer lacked authority to arrest defendant outside the geographical
area of the officer’s employment. We agree in part with defendant and
therefore grant that part of his omnibus motion with respect to counts
two and three of the indictment, which charge defendant with the
traffic infractions.

     The authority of a police officer to arrest an individual for a
“petty offense” is limited to circumstances in which the officer “has
reasonable cause to believe that such person has committed such
offense in his or her presence” (CPL 140.10 [1] [a]), and “only when .
. . [s]uch offense was committed or believed by him or her to have
been committed within the geographical area of such police officer’s
employment or within one hundred yards of such geographical area” (CPL
140.10 [2] [a]). The term “petty offense” is defined as “a violation
                                 -2-                           668
                                                         KA 11-01579

or a traffic infraction” (CPL 1.20 [39]). Here, the arresting officer
is employed by the Village of Gowanda, and it is undisputed that the
arrest did not take place within 100 yards of the village limits.
Thus, we conclude that the officer exceeded his jurisdictional
authority when he arrested defendant for committing the traffic
infractions, and the court should have granted defendant’s motion
insofar as it sought dismissal of those counts.

     We further conclude, however, that the court properly refused to
dismiss counts one and four of the indictment, charging defendant with
felony driving while intoxicated and resisting arrest, respectively.
Pursuant to CPL 140.10 (3), a police officer may arrest a person for a
crime, as opposed to a petty offense, “whether or not such crime was
committed within the geographical area of such police officer’s
employment, and he or she may make such arrest within the state,
regardless of the situs of the commission of the crime.” Thus, the
fact that defendant was arrested outside the Village of Gowanda does
not bar prosecution of the crimes charged in the indictment.

     Although defendant contended in his motion papers that counts one
and four of the indictment must be dismissed as fruit of the poisonous
tree, he has since abandoned that contention and now contends only
that the officer lacked reasonable suspicion to stop his vehicle. We
reject that contention. The arresting officer testified at the
pretrial hearing that he received an anonymous telephone call from
someone at the Iroquois Gas Station. According to the caller, there
was a man at the gas station who had exited a vehicle and was
stumbling around as if he were drunk. The caller provided a
description of the vehicle and identified its license plate number.
When the officer arrived at the gas station several minutes later, he
observed a vehicle pulling into the roadway that matched the
description provided by the caller. In addition, the vehicle’s
license plate number was the same as that provided by the caller. The
vehicle, upon entering the roadway, crossed over the center line in
violation of Vehicle and Traffic Law § 1120 (a), and then pulled up
closely behind another vehicle in the same lane of traffic, in
violation of Vehicle and Traffic Law § 1129 (a). The officer then
activated his emergency lights and stopped the vehicle. We conclude
that the specific nature of the anonymous call, when combined with the
officer’s first-hand observations, provided the requisite reasonable
suspicion to stop defendant’s vehicle (see generally People v Moss, 89
AD3d 1526, 1527, lv denied 18 NY3d 885; People v Jeffery, 2 AD3d 1271,
1272).




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
