Opinion
KA 03-00340.
Decided March 19, 2004.
Appeal from a judgment of the Ontario County Court (James R. Harvey, J.), rendered January 28, 2002. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated as a felony (two counts).
BONNIE BURGIO, WATERTOWN, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192, [3]; § 1193 [1] [c] [i]). County Court properly determined that the statement of defendant to the police officer at the hospital prior to his arrest was elicited in the course of the officer's investigation of the accident and was not the product of a custodial interrogation ( see People v. Atwood, 2 A.D.3d 1331; People v. Bongiorno, 243 A.D.2d 719, lv denied 91 N.Y.2d 889; People v. Bowen, 229 A.D.2d 954, lv denied 88 N.Y.2d 1019). Also contrary to the contention of defendant, the officer had probable cause to arrest him for driving while intoxicated based on his slurred speech and bloodshot eyes, the smell of alcohol on his breath, his admission that he had been drinking and his inability to pass sobriety tests ( see People v. Chelenza, 303 A.D.2d 991, lv denied 100 N.Y.2d 537). Finally, the evidence at the suppression hearing supports the court's determination that defendant's consent to submit to the blood test was voluntary ( see People v. Gaffney, 299 A.D.2d 922, 923, lv denied 99 N.Y.2d 582).