Opinion
04-36528.
Decided July 22, 2005.
Jessica Segal, Esq., Senior Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, Poughkeepsie, NY.
Thomas P. Halley, Esq. Poughkeepsie, NY.
Defendant is charged with, inter alia, Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192.3. A Probable Cause/Suppression hearing was held on June 16, 2005 in regard to the defendant's arrest on this charge. Thereafter, post-hearing memoranda were submitted by the parties. Upon consideration of the testimony elicited at the hearing and the arguments of counsel, the Court now determines as follows.
The People at the hearing offered the testimony of Officer Adams, a police officer with over four years experience, to establish probable cause for the arrest. Officer Adams testified that he reported to a complaint of the defendant driving a vehicle off road on a residential lot on Christmas Eve 2004. The officer further testified that he personally observed the defendant operating a vehicle off road, trying to drive up a hill, in the backyard of a residential lot. Upon stopping and approaching the vehicle, the officer testified that he detected an odor of alcohol on or about the defendant, and noted that the defendant had bloodshot eyes, slurred speech, and could not stand or walk without assistance. At that point, several typical and usual field sobriety tests were conducted by the officer on the defendant, including the "Horizontal Gaze Nystagmus" test, the "Walk and Turn" test, the "One Leg Stand" test, and the "Finger Count" test. The officer testified in detail as to how each of these tests were conducted, and that the defendant failed each of these tests. The defendant was then placed under arrest.
Defense counsel argues that the testimony of the officer did not establish probable cause because it did not amount to proof beyond a reasonable doubt. In support of this assertion, defense counsel relies on the Third Department case of People v. Gary Early, 244 AD2d 769 (3rd Dept. 1997).
The facts in Early are strikingly similar to those of the instant case. In Early, the People presented as their only witness at a suppression hearing one of the police officers involved in the arrest. That officer testified that he "detected a strong odor of alcohol on defendant's breath" and that "he conducted several field-sobriety tests" prior to placing the defendant under arrest for driving while intoxicated. Probable cause was found, and the defendant eventually pleaded guilty to the driving while intoxicated charge. The defendant's conviction was affirmed. Nevertheless, defense counsel, with some apparent justification, focuses on the following statement from the Early decision at page 771:
The People are under an obligation to prove probable cause beyond a reasonable doubt and are not necessarily obliged to call every officer who came into contact with defendant.
This portion of the Early case which purports to set a "beyond a reasonable doubt" standard for probable cause hearings has never been directly criticized or overruled by any other court, nor has it ever been directly followed. One later Third Department case which cited Early did at least indirectly refute the proposition. As stated in People v. Scott A. Kowalski, 291 AD2d 669, 670 (3rd Dept. 2002):
When a defendant is charged with driving while intoxicated, probable cause for the arrest exists if the arresting officer can demonstrate reasonable grounds to believe that the defendant had been driving in violation of Vehicle and Traffic Law § 1192 (citation omitted).
Thus, it appears that the standard of proof regarding probable cause hearings has been clarified in the Third Department.
In the opinion of this Court, the Early "beyond a reasonable doubt" proposition is contrary to established law, both in the Third Department and elsewhere. The Second Department the controlling jurisdiction in the instant case clearly holds a position contrary to that stated by the Early court. In People v. Stephen Wright and Keon Thomas, 8 AD3d 304, 306 (2nd Dept. 2004), the court stated:
Probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same experience as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense. (citations omitted). A finding of probable cause does not, however, require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case (citations omitted). Rather, "it need merely appear more probable than not that a crime has taken place and that the one arrested is its perpetrator" (citations omitted).
Similarly, the New York Court of Appeals has long held that probable cause does not require proof beyond a reasonable doubt. In People v. Richard James Bigelow, 66 NY2d 417, 423 (1985), the Court of Appeals stated:
Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place.
Indeed, several aspects of the Early decision suggest that the court (or the printer of the decision) merely misstated the law by mistakenly leaving out the word "not." First, the meaning of the Early court's language, as written, is exactly opposite the actual law as stated by the Court of Appeals as demonstrated by the following comparison:
Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt.
People v. Richard James Bigelow, 66 NY2d 417, 423 (1985), followed by People v. Gilbert Hines, 2005 NY App. Div. LEXIS 5826 (Sup.Ct., App. Div., 2nd Dept. May 31, 2005).
The People are under an obligation to prove probable cause beyond a reasonable doubt . . . People v. Gary Early, 244 AD2d 769 (3rd Dept. 1997).
Might it be that the Early court intended to write that the People are not under an obligation to prove probable cause beyond a reasonable doubt? Would that not have been an accurate statement of the law?
Second, the Early court affirmed the lower court's finding of probable cause despite the fact that only one of several police officers involved in the arrest testified, that some "minor inconsistencies" existed in his testimony, and that the officer's testimony was contradicted both by the defendant and a passenger in defendant's car. Might more have been presented by the prosecutor had the standard really been proof beyond a reasonable doubt? That is, might the prosecutor at a trial have thought it better, for example, to put on the testimony of additional police officers who were involved in the arrest in order to bolster his proof? And if the standard of proof at the probable cause hearing really was the same as at a trial, would not the prosecutor have consequently been more aggressive with his presentation of the evidence? On the other hand, if the standard of proof at the probable cause hearing was actually a lower standard than proof beyond a reasonable doubt, then the prosecutor's decision to have only one officer testify makes sense.
Finally, the very language of the Early decision suggests that the word "not" was mistakenly left out. The pertinent language of the Early decision amounts to two separate phrases joined by the conjunctive "and," yet the two phrases are not parallel in style or tone. The first phrase states that the People are required to do something, while the second phrase states that the People are not required to do a different thing. Normally, divergent phrases such as these would be joined by the word "but," i.e., the People are required to do this but are not required to do that. Contrarily, the use of the word "and" suggests that the two phrases may have been meant to be of like kind, i.e., the People are not obligated to do this and are not obligated to do that. By using the word "and" to join these two divergent phrases, the relationship between the two thoughts becomes less clear, less didactic, and less satisfying stylistically. The reader is left to ponder the rationale of having joined the two divergent phrases at all, rather than having left them to float independently in the stream of logical prose.
The People are under an obligation to prove probable cause beyond a reasonable doubt and are not necessarily obliged to call every officer who came into contact with defendant.
In the opinion of this Court, the Early decision simply misstates the law. Proof beyond a reasonable doubt is not required for purposes of a probable cause hearing. Furthermore, this court finds that probable cause did exist for the arrest of the defendant. Therefore, defense counsel's motion is denied.
All parties are directed to appear on July 28, 2005 for further proceedings.
SO ORDERED.