Opinion
2010-2736 Q CR.
08-01-2011
The People of the State of New York, Respondent, v. Genti Bici, Appellant.
PRESENT: : , P.J., GOLIA and STEINHARDT, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Robert M. Raciti, J.), rendered July 13, 2009. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the third degree, and unlicensed operation of a motor vehicle. The appeal from the judgment brings up for review the denial of defendant's motions to suppress evidence (Cesar Quinones, J.H.O.).
ORDERED that the judgment of conviction is affirmed.
The People charged defendant with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]), and unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]). After a hearing, the Criminal Court denied defendant's motions to suppress, as the products of an unlawful stop and arrest, his arrest-scene statements, his refusal to submit to chemical testing, and a videotape of his physical coordination tests.
At a jury trial, the evidence established that, in the early morning hours of March 20, 2008, a New York City police officer on motor patrol observed defendant operating his automobile in an erratic manner, repeatedly weaving from one lane to another on College Point Boulevard, at one point causing another vehicle to take evasive action to avoid a collision. The officer stopped defendant's car, and as defendant, the automobile's operator and only occupant, rolled down his window, the officer detected the strong odor of an alcoholic beverage emanating from defendant's automobile. The officer also detected a slight slurring of defendant's speech and that defendant's eyes were watery and bloodshot. The officer asked defendant how much he had been drinking, and defendant stated that he was "able to drink and drive." In response to the officer's request for driver's documentation, defendant produced a Connecticut driver's license. An investigation revealed that defendant's New York State driving privileges had been suspended as part of a sentence imposed three days earlier upon defendant's conviction of driving while impaired.
The officer arrested defendant and transported him to a testing facility, where defendant was asked to submit to a chemical test of the alcohol content of his blood. Defendant refused to be tested. Informed of the consequences of refusing a test, defendant repeated his refusal. Defendant agreed to submit to a series of physical coordination tests, which were videotaped, and both the arresting officer and the officer administering the tests concluded that defendant's performance on the tests was a further indication that defendant was intoxicated. The videotape was played for the jury.
At the trial, the defense stipulated to the admission into evidence of defendant's driving abstract, which stated the facts of defendant's prior conviction for driving while impaired and the sentence imposed thereon. On summation, the prosecutor argued, without objection, that the unchallenged abstract established that defendant must have been aware that his license had been suspended on March 20, 2008 since he had been sentenced, in part, to a license suspension only three days before. The Criminal Court, without objection, delivered a limiting instruction that the fact of the prior conviction could not be construed to mean that defendant had a propensity to drive while under the influence of alcohol, and that the prior conviction could be considered for no other purpose than with respect to proof of defendant's knowledge of the suspension. The jury convicted defendant of the three offenses.
On appeal, defendant argues that the suppression motions should have been granted, that the admission of evidence of the prior conviction was fatally prejudicial to the defense, and that the convictions were against the weight of the evidence.
The hearing court properly determined that the stop and arrest were lawful. The hearing court found the arresting officer's testimony to be credible, a finding that must be accorded deference unless clearly unsupported by the record (People v Santos, 83 AD3d 874 [2011). There is no reason on this record to discredit the arresting officer's hearing testimony as to defendant's operation of his vehicle, which the officer observed repeatedly swerving from lane to lane over a short distance on College Point Boulevard, on the last occasion forcing another driver to take evasive action to avoid a collision with defendant's vehicle. Even where an "actual violation of the Vehicle and Traffic Law [is] not . . . detectable" (People v Ingle, 36 NY2d 413, 420 [1975]), a stop based on considerations of public safety may be warranted (Saarinen v Kerr, 84 NY2d 494, 502-503 [1994]). Defendant's erratic driving provided sufficient justification for the initial stop of defendant's vehicle (e.g. People v Ellis, 169 AD2d 838, 839 [1991]; People v Sherwood, 160 AD2d 1203 [1990]; People v Rodriguez, 26 Misc 3d 238 [Sup Ct, Bronx County 2009]; cf. Vehicle and Traffic Law § 1128 [a]). As for the arrest, Vehicle and Traffic Law § 1192 (1) authorizes a conviction upon proof that defendant, "by voluntarily consuming alcohol . . . has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 427 [1979]), and "[c]ompared to proof of intoxication, the quantum of proof necessary to support a conviction of driving while impaired, and by implication, the proof required for an arrest therefor, is also far less rigorous" (People v Gingras, 22 Misc 3d 22, 24 [App Term, 9th & 10th Jud Dists 2008]; see also People v McDonald, 27 AD3d 949, 950 [2006]; People v Reding, 167 AD2d 716, 717 [1990]). Probable cause requires information sufficient to support a reasonable belief that an offense has been or is being committed (People v Bigelow, 66 NY2d 417, 423 [1985]). Viewing "all of the facts and circumstances together" (People v Francis, 44 AD3d 788, 789 [2007]), and in light of the officer's professional and personal experiences, we find that the officer could properly have determined that it was more probable than not that an offense had been committed (People v Hartman, 294 AD2d 446, 447 [2002]), namely driving while impaired (see e.g. People v Troche, 162 AD2d 483 [1990]; People v McCarthy, 135 AD2d 1113, 1114 [1987]; People v Blajeski, 125 AD2d 582 [1986]; People v Peck, 16 Misc 3d 126[A], 2007 NY Slip Op 51213[U] [App Term, 9th & 10th Jud Dists 2007]). The offense need not be the offense for which a defendant is ultimately charged (People v Andrews, 30 Misc 3d 133[A], 2010 NY Slip Op 52357[U] [App Term, 9th & 10th Jud Dists 2010]). Thus, the motions to suppress evidence were properly denied.
By stipulating to the admission of a driving abstract recording the facts both of the prior conviction and of the license suspension imposed as a part of the sentence thereon, defendant waived any objection that because this proof tended to establish defendant's propensity to drive while under the influence of alcohol it was overly prejudicial and should not have been admitted (e.g. People v Lawrence, 64 NY2d 200, 2006 [1984]; People v Gajadhar, 38 AD3d 127, 133 [2007]). Under the circumstances presented, we decline to review the claim in the interest of justice. The proof was probative of defendant's knowledge that his license was suspended when, three days later, he operated his motor vehicle. The defense also failed to object to the court's limiting instruction, which addressed the objections to the admission of the proof defendant asserts on appeal, and which the jury is presumed to have understood and followed (People v Guzman, 76 NY2d 1, 7 [1990]; People v Mooney, 62 AD3d 725, 726 [2009]).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon a review of the record, we find that the convictions were not against the weight of the evidence (People v Romero, 7 NY3d 633 [2006]). The testimonies of the People's witnesses appear truthful and internally consistent as to material fact, and "notwithstanding any minor discrepancies and inconsistencies in [their] testimony," the jury could properly credit the testimony of the People's witnesses as to the stop, arrest, refusal, and of defendant's performance on the physical coordination tests (People v Lenoir, 57 AD3d 802 [2008]), and could properly infer from the proof of the license suspension which was part of a sentence imposed only three days before defendant's arrest for the offenses charged hereon, that defendant knew his New York State driving privileges were suspended. Defendant did not argue at trial that the videotape was insufficiently reliable to warrant its admission (cf. People v Campbell, 24 Misc 3d 82, 87 [App Term, 9th & 10th Jud Dists 2009]), and, in viewing the tape, the jurors had the additional opportunity to determine for themselves whether defendant's performance on the physical coordination tests evidenced his intoxication and whether the officers' characterizations of that performance were fair and accurate.
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Golia and Steinhardt, JJ., concur.