Several police officers are scheduled to testify Wednesday during a hearing called to determine whether they had probable cause to arrest State Supreme Court Justice Amy J. Fricano on a drugged-driving charge.
And Fricano is expected to make her first appearance at any court proceeding in the case since her original arraignment, defense attorney Joel L. Daniels said Friday.
Town Justice Leonard G. Tilney Jr. is expected to reserve decision on a motion from Daniels to invalidate the arrest and the evidence the officers gathered, which consisted primarily of Fricano's actions and statements.
Special prosecutor Leonard E. Krawczyk Jr. said in his response to Daniels this week, "The arresting officer had reasonable suspicion to stop the vehicle based on his observation of the defendant's manner of driving. The observations of the defendant's person subsequent to the stop gave sufficient grounds for the charges."
The arresting officers reported the judge failed some, but not all, field tests for sobriety. She also reportedly told City of Lockport Lt. Brian W. Wentland, "I have injuries from a previous accident and take medication. I shouldn't be driving. I was going to take myself off the road."
However, Daniels' motion asserts that Fricano last took the powerful prescription painkiller hydrocodone the night before the April 9 incident in which Fricano's sport utility vehicle ran off High Street here and snapped off a utility pole. She was pulled over on Ernest Road about 20 minutes later.
Although placed in a patrol car and handcuffed, Fricano, 52, was not formally charged with anything until more than 2 1/2 hours later. She refused to take a blood test for the presence of drugs, although a breath test for alcohol produced a reading of zero.
The long period of time Fricano was held before being charged was cited by Daniels in his motion as another reason why the arrest should be invalidated. Police waited for the arrival at the county Sheriff's Office of a state trooper with the proper certification as a drug recognition expert.
Krawczyk wrote in his answer to Daniels that he opposes suppression of evidence obtained "subsequent to the defendant's lawful arrest."
Daniels said he will question when that arrest took place. "Those are issues for the court to decide," he said.
Fricano has had several medical leaves since injuring her back jumping out of the way of a car in the parking lot of Southgate Plaza, West Seneca, in December 2003. After her arrest, she was placed on administrative leave but continues to draw her $136,900 salary.