Opinion
25153-05.
Decided March 9, 2006.
Casey F. Spencer, Assistant District Attorney Paul D. Kelly, Esq., Attorney for Defendant.
The defendant was arrested and charged with Common Law Driving While Intoxicated, VTL 1192(3), Open Container VTL 1227(1) and Failure to Produce License, VTL 507(2) on October 30, 2005 at 8:43 A.M. Later that morning he was arraigned before Judge David T. Corretore, who suspended the defendant's driver's license for failure to submit to the breathalyzer test, pursuant to VTL 1194. Finally, the court set bail in the amount of $2,500.00 cash or bond. The matter was eventually set down for a Probable Cause/Huntley hearing on January 27, 2006.
Facts of the Case.
The People called Webster Police Officer Michael Burns as the their only witness for said hearing. Officer Burns testified that on October 30, 2005, at approximately 8:43 A.M. while he was on routine patrol, he received a 911 call to respond to a man slumped over the wheel of his car, which was located in the ESL parking lot on Ridge Road in the Town of Webster. Upon his arrival Officer Burns observed a blue minivan, which was not in a designated parking spot.
The minivan was facing east and apparently in the middle of the parking lot. The defendant's vehicle was surrounded by a number of individuals. Upon approaching the vehicle, the officer observed that the defendant, who appeared to be asleep behind the wheel. As a result, the officer opened the driver's door and vigorously shook the defendant. Officer Burns was able to detect that the defendant had a pulse and was breathing. The defendant then began to mumble something to the officer. Officer Burns again shook the defendant and inquired as to whether the defendant had any relevant medical issues. This time the defendant stated that he was fine and was coming from a friend's house. The officer asked him if he was diabetic or epileptic.
The defendant advised the officer that he did not suffer from any of those conditions. Officer Burns ordered the defendant out of the vehicle at this time, whereupon the defendant was observed to stumble. The officer observed him lean back to get his balance. During that time the officer detected a strong odor of an alcoholic beverage on the defendant's breath and observed tat the defendant had red, blood shot eyes, and that the defendant's speech was slurred.
The defendant could not produce a driver's license, but did identify himself as Jason Dreier.
At that time the defendant was asked to perform various roadside tests. The first test was the "Alphabet Test". The defendant was asked to recite the alphabet from "C" to "V". The defendant missed the letters G, H and I and recited "X, Y and Z". As a result, the officer testified that the defendant failed the test. The defendant was then asked to perform the "Finger to Nose Test". The officer testified that the defendant failed this test because he touched his lip with his right index finger and touched his left nostril with this left index finger. The officer then performed the Horizontal Gaze Nnystagamus Test. The officer testified, that based on his observations of the defendant's eyes, the defendant failed this test. Next the defendant was asked to perform the "Walk and Turn" Test. The officer testified that the defendant failed this test, because he stepped off the yellow line that was used for the test, and that the defendant raised his arms while he walked.
Based on his observations of the defendant, the officer formed the opinion that the defendant was not mentally and physically capable of driving his vehicle. He then arrested him for driving while intoxicated. While still in the ESL parking lot the arresting officer then advised the defendant of his Miranda rights. The defendant indicated that he understood his rights and agreed to speak to the officer. The relevant questions and answers were as follows:
Question: Were you operating a motor vehicle?
Answer: Huh?
Question: Where?
Answer: Right There.
Question: When?
Answer: Earlier.
Question: Have You been drinking?
Answer: Yes.
Question: What?
Answer: Beer.
Question: How much?
Answer: A couple.
Question: Where?
Answer: A friends house.
Officer burns testified that he took a written statement from a Mary Ruebens, who was the woman who supposedly called 911. The people then offered that written statement into evidence.
The written statement indicated among other things, that Ms. Ruebens had turned off the engine of the defendant's minivan, when she opened the door of the vehicle to examine the defendant.
The defense objected to said written statement being entered into evidence on three grounds.
First, the pre-trial hearings had previously been adjourned, so this was the second time that said witness was not produced by the people. Second, the written statement of the witness was hearsay. Third, because failure to produce said witness violated the defendant's right of confrontation.
On cross-examination Officer Burns indicated that he found an open bottle of Rum which was found in the front passenger side of the defendant's vehicle. The 357 ml bottle of Captain Morgan Original Spiced Rum was entered into evidence by defense counsel. The officer testified that two-thirds of the rum was missing. However, the officer conceded he did not know who consumed the missing rum or when it was consumed. The officer testified that he never saw the defendant operate the vehicle, and that the car was not running when he arrived on the scene. In fact, he testified that he did not observe a key in the vehicle's ignition. Officer Burns testified that he had been working the night shift and that he had previously passed by the location in question, without noticing the defendant's van. As a result, he did not know when the defendant's van arrived at the scene.
Issues Presented.
Were the statements made by the defendant voluntarily given?
Must the witness testify at a pre-trial hearing in order to make her written statement admissible into evidence?
Did the officer have reasonable cause to arrest the defendant for driving while intoxicated, when neither the officer nor the reporting witness observed the defendant operate the motor vehicle?Legal Analysis.
A. Voluntariness of Statements. The issue of the voluntariness of a statement is governed by CPL 60.45. CPL 60.45(1) forbids the entry into evidence of a defendant's statement if same was given involuntarily. CPL 60.45(2) describes what would make a statement involuntary. Lastly, "In People v. Huntley, 15 NY2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), the Court concluded that it is the People's burden to establish, beyond a reasonable doubt, that a statement was voluntarily made." Handling The DWI Case in New York, (2004-05 Edition) page 562, 563.
In the instant case the police officer testified to providing the defendant with his Miranda rights. The officer testified that the defendant both understood his rights and that the defendant agreed to speak with him. The officer further testified that no promises or threats were made to get the defendant to speak to him. The court finds the testimony of Officer Burns to be credible.
Based on the evidence presented at this hearing, the People have met their burden relative to the voluntariness of the defendant's statements. As a result, the motion to suppress the defendant's statements is hereby denied.
B. Admissibility of Written Statement.
Defense counsel objects, based on hearsay grounds, to the admissibility of the written witness statement being admitted into evidence without said witness being called to testify.
Instead, the statement was offered into evidence after Officer Burns testified that he took the statement from the witness. CPL 710.60(4), in reference to pre-trial suppression hearings states, that ". . . hearsay evidence is admissible to establish every material fact." See also CPL 70.10(2) which permits hearsay to be used to establish "reasonable cause" if the evidence submitted is determined to be reliable. As previously indicated, the instant hearing is referred to as a "probable cause" hearing.
"While the Criminal Procedure Law contemplates suppression hearings in regard to such areas as confessions, searches, and identification, there is no mention of probable cause hearings. The most frequently cited authority for the probable cause hearing is Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed 2d 824 (1979)." Handling the DWI Case In New York (2204-05) at Page 42, 43.
In any event, the only caveat is that a finding of probable cause cannot be based ". . . solely on hearsay evidence." People v. Randall, (3rd Dept 1987) 135 AD2d 915, 916, 522 N.Y.S.2d 314, 315. See Also, People v. Havelka 45 NY2d 636, 412 N.Y.S.2d 345 (1978).
In this case there is independent evidence of the defendant's intoxication. In particular there is the direct observations of the defendant by the arresting officer, who testified to seeing the defendant asleep behind the wheel of his minivan, to observing the defendant displaying physical indicia of intoxication and to the defendant's failure of the various roadside tests.
As a result, the written statement of Mary Ruebens, who allegedly called 911 to report seeing the defendant slumped over the wheel of his vehicle, is admitted over the objection of the defendant.
Based on the above reasoning the Court finds the remaining issues raised by the defendant in opposition to the entry into evidence of the written witness statement to be without merit.
C. Probable Cause.
The Criminal Procedure Law utilizes the phrase "reasonable cause" instead of "probable cause" CPL 70.10(2). However these phrases ". . . are used interchangeably". Handling the DWI Case In New York (2004-05) at page 38. CPL 70.10(2) states that
"Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."
A review of CPL 70.10(2) seems to indicate that the legislature intended to establish a reasonable person standard relative to determining if reasonable cause to arrest exists. Nevertheless, the Court of Appeals in People v. Carrasquillo, 54 NY2d 248, 252, 445 N.Y.S.2d 97, 100 (1981) stated that
"In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice People v. De Bour, 40 NY2d 210, 216, 386 N.Y.S.2d 375, 352 N.E.2d 562, supra; People v. Corrado, 22 NY2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526; La Fave, Street Encounters' and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich.L.Rev. 40, 73-75). In making such a judgment, we must also bear in mind that [i]n dealing with probable cause * * * we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act' ( Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879)."
In this case neither the arresting officer nor the reporting witness ever saw the defendant operating a vehicle. However, it is clear that operation of a motor vehicle can be established by circumstantial evidence. See People v. Booden, 69 NY2d 185, 188, 513 N.Y.S.2d 87, 89. In addition The Office of Court Administration Pattern Jury Instructions states that
"A person also OPERATES a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing it in operation, and when the motor vehicle is moving, or even if it is not moving, the engine is running.
CJI(NY) (2d ed.) VTL 1192, at 1002-03 (footnote omitted)." Handling the DWI Case in New York (2004-05 Edition) at Page 56.
Observation of the defendant actually driving a motor vehicle is not a necessary element of Driving While Intoxicated. "Our courts have long recognized that the definition of operation is broader than that of driving. . . ." People v. Prescott, 95 NY2d 655, 663, 722 N.Y.S.2d 778, 782 (2001).
Despite the fact that the defendant was never observed driving the van in which he was found, the evidence produced at the probable cause hearing established that the defendant was observed at about 8:43 A.M. behind the wheel of a motor vehicle, whose engine was running; that there was an open bottle of rum found next to the defendant; that the defendant was observed to be asleep by the reporting witness and the arresting officer; that the defendant's vehicle was located in a parking lot, but was not in a designated parking spot; that no one other than the defendant was in the vehicle; that the defendant exhibited various indicia of intoxication; that the defendant failed various road side sobriety tests; that the defendant admitted consuming beer; and that the defendant admitted to driving the vehicle "earlier".
The evidence produced at the Probable Cause/Huntley hearing appears reliable and sets out facts and circumstances which collectively were of such weight and persuasiveness that would convince a person of ordinary intelligence, judgment and experience that it is reasonably likely and more probably than not, that the offenses charged herein were committed and that the defendant committed them. Therefore defendant's motion to suppress use of all tangible evidence obtained by the people, pursuant to CPL 710.20(1), 710.20(4) and 710.70(1), because of a lack of probable cause to arrest the defendant is hereby denied.
Conclusion.
The written statement of the reporting witness is admissible into evidence for purposes of the pre-trial suppression hearing. The defendant's motions to suppress the statements of the defendant and to suppress any tangible evidence obtained by the People are also denied. The case is restored to the disposition calender on April 5, 2006 at 1:00 P.M. This constitutes the decision and order of the Court.