Opinion
No. 2010–1423N CR.
2012-12-10
The PEOPLE of the State of New York, Respondent,- v. Jill FREEMAN, Appellant.
Present: NICOLAI, P.J., IANNACCI and LaSALLE, JJ.
Appeal from three judgments of the District Court of Nassau County, First District (Tricia M. Ferrell, J.), rendered May 3, 2010. The judgments convicted defendant, upon her pleas of guilty, of driving while intoxicated per se, speeding, and failing to maintain a lane, respectively.
ORDERED that the judgments of conviction are affirmed.
On December 14, 2007, the People charged defendant, in three simplified traffic informations, with driving while intoxicated per se (Vehicle and Traffic Law § 1192[2] ), speeding (Vehicle and Traffic Law § 1180[d] ), and failing to maintain a lane (Vehicle and Traffic Law § 1128[a] ), respectively. A chemical test revealed that defendant's blood alcohol content was .14 of one per centum by weight. Following a hearing to determine the validity of the initial stop of defendant's automobile for traffic infractions and the admissibility of defendant's statements and the chemical test results, the District Court denied defendant's motion to suppress, whereupon defendant pleaded guilty to the charges. Defendant appeals from the judgments, alleging that the initial stop of her vehicle was without probable cause, as was her subsequent arrest for driving while intoxicated.
At the hearing, the arresting officer, whose testimony the District Court credited, stated that he had been trained to estimate the speeds of moving vehicles, and that when he had first observed defendant, at about 4:28 A.M., she was traveling at 70 miles per hour in a 50 miles per hour zone in the westbound lanes of Hempstead Turnpike. The officer confirmed defendant's speed by pacing defendant's car, and he also observed defendant's vehicle weaving. The officer's testimony was admissible without proof of a speedometer calibration (People v. Marsellus, 2 N.Y.2d 653, 655 [1957] ). In light of the officer's estimate that defendant continuously drove 20 miles per hour over the speed limit, the proof at the hearing was sufficient to establish probable cause to stop defendant's vehicle for the traffic infraction of speeding ( see People v. Olsen, 22 N.Y.2d 230, 232 [1968];People v. White, 40 AD3d 535, 536 [2007];People v. Graziano, 19 Misc.3d 133[A], 2008 N.Y. Slip Op 50692[U] [App Term, 9th & 10th Jud Dists 2008] ). Given the lawfulness of the stop, the District Court properly denied suppression of defendant's subsequent voluntary statements as to her consumption of alcoholic beverages, uttered in the course of the officer's noncustodial roadside investigation ( see People v. Alls, 83 N.Y.2d 94, 99 [1993];People v. Tandle, 71 AD3d 1176, 1178 [2010];People v. Myers, 1 AD3d 382, 383 [2003];People v.. Mathis, 136 A.D.2d 746 [1988];People v. MacKenzie, 9 Misc.3d 129[A], 2005 N.Y. Slip Op 51535[U] [App Term, 9th & 10th Jud Dists 2005] ).
Probable cause for an arrest requires “information sufficient to support a reasonable belief that an offense has been or is being committed” (People v. Bigelow, 66 N.Y.2d 417, 423 [1985] ). In determining the propriety of an arrest for violating Vehicle and Traffic Law § 1192, “[t]he only valid inquiry ... is whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor” (People v. Farrell, 89 A.D.2d 987, 988 [1982] ). Consequently, 7F'the legality of [such] an arrest ... is not conditioned upon whether the arresting officer specified the correct subdivision of Vehicle and Traffic Law § 1192, or upon his [or her] belief as to which subdivision had been violated. All that is required is that [the officer] have had reasonable cause to believe that defendant had violated Vehicle and Traffic Law § 1192' “ (People v. Gingras, 22 Misc.3d 22, 23 [App Term, 9th & 10th Jud Dists 2008], quoting People v. Hilker, 133 A.D.2d 986, 987–988 [1987];see also People v. Andrews, 30 Misc.3d 133[A], 2010 N.Y. Slip Op 52357[U] [App Term, 9th & 10th Jud Dists 2010] ). An arrest pursuant to Vehicle and Traffic Law § 1192(1) is authorized upon probable cause that a defendant, by voluntarily consuming alcohol, has actually impaired, to any extent, his or her ability to operate a vehicle as a reasonable and prudent driver (People v. Cruz, 48 N.Y.2d 419, 427 [1979] ). The quantum of proof necessary to support an arrest for driving while impaired is “far less rigorous” than that required for driving while intoxicated (People v. Gingras, 22 Misc.3d at 24, quoting People v. Reding, 167 A.D.2d 716, 717 [1990] ).
In addition to the arresting officer's observations of defendant's operation of her vehicle, which included speeding and weaving, the hearing testimony established that, during the roadside investigation, defendant exhibited glassy, bloodshot eyes, slurred speech, and the odor of an alcoholic beverage on her breath, and she admitted that she had been drinking beer at a friend's house ( see People v. McDonald, 27 AD3d 949, 950 [2006] ). In the course of roadside sobriety tests, defendant exhibited indicia of the effects of alcohol consumption, including the “jerking” of her eyes on the horizontal gaze nystagmus test and using her arms or hands to steady herself on the remaining tests. “[I]n light of the officer's professional and personal experiences” ( People v. Bici, 32 Misc.3d 136[A], 2011 N.Y. Slip Op 51474 [U], *3 [App Term, 2d, 11th & 13th Jud Dists 2011] ), the hearing evidence, “viewed objectively” (People v. Nesbitt, 1 AD3d 889, 890 [2003] ), established that there was probable cause to arrest defendant for driving while impaired ( see e.g. People v. McCarthy, 135 A.D.2d 1113, 1114 [1987];People v. Blajeski, 125 A.D.2d 582, 582–583 [1986];People v. Bici, 32 Misc.3d 136[A], 2011 N.Y. Slip Op 51474[U],*1; People v. Andrews, 30 Misc.3d 133[A], 2010 N.Y. Slip Op 52357[U], *2; People v. Grodecki, 2001 N.Y. Slip Op 40537[U], *3 [App Term, 9th & 10th Jud Districts 2001] ).
Accordingly, the judgments of conviction are affirmed.