Opinion
2005-61 OR CR.
Decided September 30, 2005.
Appeal from an order of the Justice Court of the Town of New Windsor, Orange County (Donald J. Suttlehan, J.), entered November 11, 2004. The order granted defendant's motion to suppress evidence and dismissed the accusatory instruments.
Order unanimously reversed on the law, that branch of defendant's motion to suppress physical evidence denied, accusatory instruments reinstated and matter remanded to the court below for a determination of the remaining branch of defendant's motion and all further proceedings.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
We note at the outset that the court lacked authority to dismiss an accusatory instrument for lack of probable cause to arrest or by reason of the loss of evidence suppressed upon such a determination ( People v. Douglass, 60 NY2d 194, 204-205; People v. Aiken, 251 AD2d 339; People v. Winn, 232 AD2d 438, 439; People v. Jordan, 210 AD2d 135, 136; People v. Tartaglione, 5 Misc 3d 126[A], 2004 NY Slip Op 51190[U] [App Term, 9th 10th Jud Dists]; see also Matter of Holtzman v. Goldman, 71 NY2d 564, 573). Whether there remains sufficient evidence to prosecute a charge after evidence is suppressed as the fruit of an illegal arrest is a matter for the People to determine ( People v. Smedman, 184 AD2d 600, 603-604; People v. Aldrich-O'Shea, 6 Misc 3d 35, 36 [App Term, 9th 10th Jud Dists 2004]).
Moreover, the evidence before the hearing court sufficed in quantity and quality to establish probable cause for defendant's arrest, at the very least for violating Vehicle and Traffic Law § 1192 (1) (CPL 140.10 [a], [b]; 70.10 [2]; People v. Bigelow, 66 NY2d 417, 423; People v. Wright, 8 AD3d 304, 307; see e.g. People v. Ball, 141 AD2d 743, 745; People v. McCarthy, 135 AD2d 1113, 1114; People v. Blajeski, 125 AD2d 582, 582-583; People v. Kalwiss, 6 Misc 3d 129[A], 2005 NY Slip Op 50057[U] [App Term, 9th 10th Jud Dists]; People v. Grodecki, 2001 NY Slip Op 40537[U] [App Term, 9th 10th Jud Dists]).