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People v. Clivilles

Supreme Court of New York, Appellate Division, First Department

December 1, 2010

The People of the State of New York, Respondent,
v.
Carlos Clivilles, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Larry R.C. Stephen, J.), rendered November 19, 2008, after a jury trial, convicting him of three counts of operating a motor vehicle while under the influence of alcohol, and imposing sentence.

PRESENT: Hunter, Jr., J.P., McKeon, Shulman, JJ

PER CURIAM.

Judgment of conviction (Larry R.C. Stephen, J.), rendered November 19, 2008, affirmed.

The court properly denied defendant's suppression motion. The police testimony adduced at the suppression hearing established that when defendant's vehicle was stopped at the sobriety checkpoint, defendant had watery eyes, slurred speech and the smell of alcohol on his breath. Further, defendant acknowledged to the police that he had consumed alcohol. Since the testimony demonstrated that the police had a reasonable suspicion (see People v Moore, 6 N.Y.3d 496 [2006]; People v De Bour, 40 N.Y.2d 210 [1976]) that defendant had been operating a motor vehicle while under the influence of alcohol (see VTL § 1192), there was a proper basis for the police to detain defendant to administer the portable breathalyzer tests (see VTL § 1194[2][a][1]; see generally Michigan Dept. of State Police v Sitz, 496 U.S. 444 [1990]; People v Scott, 63 N.Y.2d 518 [1984]). Moreover, the police observations, coupled with the results of the portable breathalyzer testing, provided probable cause for defendant's arrest.

Additionally, the verdict was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). We note that, in addition to the police testimony supporting defendant's conviction for operating a motor vehicle while under the influence of alcohol, the intoxilyzer test of defendant's blood alcohol content that was administered at the precinct yielded a reading of.129% (see VTL § 1192[2]).


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