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The People of the State of New York v. Larry Creer

December 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
LARRY CREER,
DEFENDANT-APPELLANT.



Per curiam.

People v Creer (Larry)

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on December 30, 2010

PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (Doris M. Gonzalez, J.), dated August 9, 2009, which granted defendant's suppression motion.

Order (Doris M. Gonzalez, J.), dated August 9, 2009, reversed, on the law and facts, the motion denied and the matter remanded for further proceedings.

Probable cause for defendant's arrest was established by the arresting officer's observations of defendant, who exhibited the "classic signs of intoxication" (People v Curkendall, 12 AD3d 710, 713 [2004], lv denied 4 NY3d 743 [2004]) -- defendant had bloodshot, watery eyes, alcohol on his breath, and an unsteady gait (see People v Moskal, 262 AD2d 986 [1999]). Furthermore, the officer testified that defendant, prior to his arrest, admitted that he had consumed alcohol. Notably, while the suppression court found that the officer's testimony was "at times" not credible, the court made no specific finding that the officer's testimony regarding his observations of defendant (or defendant's pre-arrest admission) was not credible. Moreover, that the police did not administer roadside coordination tests or a portable breathalyzer test does not warrant the conclusion that the police lacked probable cause (see People v Poje, 270 AD2d 649 [2000], lv denied 95 NY2d 802 [2000]; see also People v Moskal, supra). Likewise, the result of the breathalyzer test administered at the precinct approximately two hours after defendant's arrest, which was below the legal limit, did not undermine a finding of probable cause (see People v Thomas, 68 AD3d 482 [2009], lv denied 14 NY3d 806 [2010]). People v Larry Creer calendar no. 10-116 SCHOENFELD, J. (dissenting)

I respectfully dissent. The self-contradictory and confusing testimony of the arresting officer entitled the trial judge to find that there was no probable cause for defendant Larry Creer's arrest. The defendant's motion to suppress the evidence was therefore properly granted. The decision below should be affirmed.

The People appeal from an order of the Criminal Court of the City of New York, Bronx County, which granted a motion by defendant to suppress evidence and statements.

Defendant, arrested on September 27, 2008 and charged with driving under the influence of alcohol pursuant to Vehicle and Traffic Law § 1192(1), moved to suppress statements, physical evidence and the breathalyzer results, claiming that the police lacked probable cause to arrest him.

At a June 30th/July 1st, 2009 Mapp/Huntley/Dunaway hearing to determine defendant's motion on whether the evidence should be suppressed, Police Officer Andrew Ulich was the sole testifying witness. After the hearing, the court issued a decision granting the defendant's motion on the ground that the Officer's testimony was "inconsistent, confusing, vague, tailored and not credible," and therefore did not establish probable cause. Specifically, the court wrote: "this court finds that the witness's observation of the smell of alcoholic beverage between cars and unsteady gait taken with inconsistent testimony does not arise to probable cause to arrest."

"[M]uch weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses." People v. Prochilo, 41 NY2d 759, 761 (1977). An appellate court will not substitute its own findings on credibility for those of the trial court unless "the fact findings under review are plainly unjustified or clearly erroneous." People v. Clough, 70 AD3d 474, 474 (1st Dept. 2010). "The credibility determinations of the hearing court will not be disturbed where there is support in the record for such determinations." People v. Hardie, 64 AD3d 666, 667 (2d ...


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