Appeal from a judgment of the District Court of Suffolk County, First District (Toni A. Bean, J.), rendered June 17, 2010.
Decided on February 15, 2012
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: MOLIA, J.P., NICOLAI and IANNACCI, JJ
The judgment convicted defendant, upon a jury verdict, of driving while intoxicated.
ORDERED that the judgment of conviction is affirmed.
Responding to a report of an anonymous 911 call to the effect that an automobile of a specified model and with a specified license plate number had been operated erratically, a police officer encountered a vehicle of the same make and bearing the same license plate parked on the side of a road, with the keys in the ignition and the engine running. Defendant, who was seated behind the wheel and in a slumped posture, did not immediately respond to the officer's efforts to rouse her from her torpor. Following the administration of field sobriety tests, all of which defendant failed, having observed defendant's red, watery eyes and her diminished verbal competence, and having detected a strong odor of an alcoholic beverage emanating from her breath, the officer arrested defendant. Defendant initially refused, and then agreed, to submit to a breath test of her blood alcohol content. When defendant repeatedly refused to supply, or proved incapable of supplying, a sample of her breath sufficient for testing, the testing procedure was discontinued and the police officer offered her no other form of blood alcohol testing. Prior to trial, defendant moved to suppress the 911 recording as containing testimonial content in violation of her rights under the Confrontation Clause, specifically the caller's statement to the effect that she believed the operator of the vehicle was "drunk." Defendant also sought to suppress all evidence gathered in the subsequent investigation as the fruit of an arrest which lacked probable cause because the People could not produce sufficient evidence that defendant had operated her vehicle while intoxicated. After a hearing, the District Court denied the motion, and, following a trial in which the People introduced the unredacted 911 tape, the jury found defendant guilty of driving while intoxicated (Vehicle and Traffic Law § 1192 ).
On appeal, defendant contends that the admission of the 911 tape was error, that the District Court should have suppressed evidence as the fruit of an illegal arrest based on the failure to prove operation, that the police should have afforded her a blood test after she proved unable to provide a sufficient sample for a breath test, that the trial proof was legally insufficient to establish operation and intoxication, and that, in any event, the proof was against the weight of the evidence. For the reasons that follow, the judgment of conviction is affirmed.
The District Court properly denied the motion to suppress evidence. "[T]he definition of operation is broader than that of driving and . . . [a] person operates a motor vehicle within the meaning of [the statute] when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle'" (People v Prescott, 95 NY2d 655, 662 , quoting People v Alamo, 34 NY2d 453, 459 ). The evidence that defendant was discovered behind the wheel of her vehicle with the engine running and the key in the ignition is sufficient to establish the element of operation without the necessity of proof that defendant actually placed her vehicle in motion (see e.g. People v Alamo, 34 NY2d at 458; People v Cunningham, 274 AD2d 484 ; People v Blue, 15 Misc 3d 128[A], 2007 NY Slip Op 50597[U] [App Term, 9th & 10th Jud Dists 2007]).
In Davis v Washington (547 US 813, 822 ), the Supreme Court held that statements that may be characterized as present sense impressions uttered to "enable police assistance, to meet an ongoing emergency," are non-testimonial in nature and do not trigger the rights implicated by the Confrontation Clause. Adopting this standard, the Court of Appeals has noted that the determination of what qualifies as testimonial hinges on the declarant's objective primary purpose (see People v Rawlins, 10 NY3d 136 ). Because "(a) 911 call . . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to establish or prove some past fact, but to describe current circumstances requiring police assistance," such statements are not testimonial and generate no Confrontation Clause concerns (id. at 149 n 7, quoting Davis v Washington, 547 US at 827; see e.g. People v Clay, 88 AD3d 14 ). As the caller's objective purpose was to alert the police to a dangerous situation -- an out-of-control, and possibly intoxicated, driver -- and to provide enough identifying information to allow the police to locate the vehicle, the 911 tape was admissible, including the characterization of the driver as "drunk," which was a part of the explanation of the nature of the public emergency. There is no indication that the statement was evoked by the attempt of the 911 operator to gather information in relation to a future prosecution. Thus, there was no error.
Viewing the evidence in the light most favorable to the People (see People v Hawkins, 11 NY3d 484, 493 ), we find that it was legally sufficient to establish defendant's guilt of driving while intoxicated. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Romero, 7 ...