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