Opinion
No. 2013–1973 W CR.
09-18-2015
The PEOPLE of the State of New York, Respondent, v. Lino GRAMAJO, Appellant.
Opinion
Appeal from judgments of the Justice Court of the Town of Greenburgh, Westchester County (Doris T. Friedman, J., at suppression hearing; Sandra A. Forster, J., at trial), rendered August 23, 2013. The judgments convicted defendant, after a nonjury trial, of driving while intoxicated (common law) and changing lane unsafely, respectively.
ORDERED that the judgments of conviction are affirmed.
On April 17, 2010, the People charged defendant, in separate simplified traffic informations, with driving while intoxicated (common law) (Vehicle and Traffic Law § 11923 ), changing lane unsafely (Vehicle and Traffic Law § 1128[a] ), and refusal to submit to a breath test pursuant to Vehicle and Traffic Law § 1194(1)(b), respectively. Prior to trial, the third charge was withdrawn. After a suppression hearing, the Justice Court (Doris T. Friedman, J.) concluded that there had been probable cause to stop defendant's vehicle for a traffic infraction and, following the troopers' roadside investigation, to arrest defendant for driving while intoxicated. The court suppressed defendant's admission of alcoholic beverage consumption as the product of unwarned custodial interrogation, but allowed the People to present evidence at the trial of defendant's constructive refusal to submit to a chemical test of his blood alcohol content. After a nonjury trial, the Justice Court (Sandra A. Forster, J.) convicted defendant of driving while intoxicated (common law) and changing lane unsafely. On appeal, defendant argues that the initial stop of his vehicle for changing lane unsafely was without probable cause, as was his subsequent arrest for driving while intoxicated. Defendant further asserts that the evidence was legally insufficient to support the convictions, which were, in any event, against the weight of the evidence.
Vehicle and Traffic Law § 1128(a) requires that “[a] vehicle ... be driven as nearly as practicable entirely within a single lane” (see e.g. People v. Tandle, 71 AD3d 1176, 1177 2010; People v. Blanco, 67 AD3d 923, 923 2009; People v. Parris, 26 AD3d 393, 394 2006; People v. Ogden, 250 A.D.2d 1001, 1001 1988 ). At the suppression hearing, a state trooper testified that he had observed defendant's vehicle repeatedly “drift out of the center lane into the right lane straddling both lanes” and back to the center, before making unsignaled lane changes into the right lane and back to the center lane. Overall, the trooper concluded, defendant “was driving erratically.” These observations, taken together, establish that there was probable cause (People v. Guthrie, 25 NY3d 130, 132 2015 ) to stop defendant for violating Vehicle and Traffic Law § 1128(a), and also Vehicle and Traffic Law § 1163(d) (see e.g. People v. Rasul, 121 AD3d 1413, 1415 2014; People v. Lamb, 235 A.D.2d 829, 830–831 1997 ). While the simplified traffic information specified that defendant had committed an unsafe lane change, an automobile stop is lawful so long as it is demonstrated that a traffic violation occurred, and it is not necessary that defendant be charged with the specific violation established at a probable cause hearing (see People v. Robinson, 97 N.Y.2d 341 2001; e.g. People v. Weishaupt, 118 AD3d 1100, 1102 2014 [as the hearing evidence established that defendant had committed a traffic offense, the stop was lawful even if the officer “did not ultimately issue defendant any traffic tickets”]; People v. Ross, 106 AD3d 1194, 1195 2013 [same] ).
There also was probable cause for defendant's arrest. As is the rule with an automobile stop, the lawfulness of an arrest need not be established on the basis of the particular offense ultimately charged. Here, it sufficed that there was a basis to arrest defendant for driving while impaired.
“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, 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] )” (People v. Freeman, 37 Misc.3d 142[A], 2012 N.Y. Slip Op 52281[U], *2 [App Term, 9th & 10th Jud Dists 2012]; see also People v. Bici, 32 Misc.3d 136[A], 2011 N.Y. Slip Op 51474[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v. Vandover, 31 Misc.3d 131[A], 2011 N.Y. Slip Op 50592[U] [App Term, 9th & 10th Jud Dists 2011] ).
Defendant's erratic driving, the odor of an alcoholic beverage on defendant's breath, his bloodshot and watery eyes, his slurred speech, the diminished physical coordination exhibited when he placed his hands on his vehicle to steady himself as he exited his vehicle and proceeded to where a second trooper administered field sobriety tests, and his failure to perform all three tests, two by exhibiting the inability even to complete them, provided probable cause to arrest defendant, at the very least, for driving while impaired.
Defendant's claim with respect to the legal sufficiency of the trial evidence to support the judgments of conviction is not preserved for appellate review. In any event, we find the evidence to be legally sufficient. Moreover, upon a review of the trial record, we conclude that the convictions are not against the weight of the evidence (see CPL 470.155; People v. Danielson, 9 NY3d 342 2007 ).
Accordingly, the judgments of conviction are affirmed.
TOLBERT, J.P., MARANO and CONNOLLY, JJ., concur.