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The People of the State of New York v. Jill Freeman

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


December 10, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
JILL FREEMAN,
APPELLANT.

Appeal from three judgments of the District Court of Nassau County, First District (Tricia M. Ferrell, J.), rendered May 3, 2010.

People v Freeman (Jill)

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on

PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ

The judgments convicted defendant, upon her pleas of guilty, of driving while intoxicated per se, speeding, and failing to maintain a lane, respectively.

ORDERED that the judgments of conviction are affirmed.

On December 14, 2007, the People charged defendant, in three simplified traffic informations, with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), speeding (Vehicle and Traffic Law § 1180 [d]), and failing to maintain a lane (Vehicle and Traffic Law § 1128 [a]), respectively. A chemical test revealed that defendant's blood alcohol content was .14 of one per centum by weight. Following a hearing to determine the validity of the initial stop of defendant's automobile for traffic infractions and the admissibility of defendant's statements and the chemical test results, the District Court denied defendant's motion to suppress, whereupon defendant pleaded guilty to the charges. Defendant appeals from the judgments, alleging that the initial stop of her vehicle was without probable cause, as was her subsequent arrest for driving while intoxicated.

At the hearing, the arresting officer, whose testimony the District Court credited, stated that he had been trained to estimate the speeds of moving vehicles, and that when he had first observed defendant, at about 4:28 A.M., she was traveling at 70 miles per hour in a 50 miles per hour zone in the westbound lanes of Hempstead Turnpike. The officer confirmed defendant's speed by pacing defendant's car, and he also observed defendant's vehicle weaving. The officer's testimony was admissible without proof of a speedometer calibration (People v Marsellus, 2 NY2d 653, 655 [1957]). In light of the officer's estimate that defendant continuously drove 20 miles per hour over the speed limit, the proof at the hearing was sufficient to establish probable cause to stop defendant's vehicle for the traffic infraction of speeding (see People v Olsen, 22 NY2d 230, 232 [1968]; People v White, 40 AD3d 535, 536 [2007]; People v Graziano, 19 Misc 3d 133[A], 2008 NY Slip Op 50692[U] [App Term, 9th & 10th Jud Dists 2008]). Given the lawfulness of the stop, the District Court properly denied suppression of defendant's subsequent voluntary statements as to her consumption of alcoholic beverages, uttered in the course of the officer's non-custodial roadside investigation (see People v Alls, 83 NY2d 94, 99 [1993]; People v Tandle, 71 AD3d 1176, 1178 [2010]; People v Myers, 1 AD3d 382, 383 [2003]; People v Mathis, 136 AD2d 746 [1988]; People v MacKenzie, 9 Misc 3d 129[A], 2005 NY Slip Op 51535[U] [App Term, 9th & 10th Jud Dists 2005]).

Probable cause for an arrest requires "information sufficient to support a reasonable belief that an offense has been or is being committed" (People v Bigelow, 66 NY2d 417, 423 [1985]). In determining the propriety of an arrest for violating Vehicle and Traffic Law § 1192, "[t]he only valid inquiry . . . is whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor" (People v Farrell, 89 AD2d 987, 988 [1982]). Consequently, " the legality of [such] an arrest . . . is not conditioned upon whether the arresting officer specified the correct subdivision of Vehicle and Traffic Law § 1192, or upon his [or her] belief as to which subdivision had been violated. All that is required is that [the officer] have had reasonable cause to believe that defendant had violated Vehicle and Traffic Law § 1192'" (People v Gingras, 22 Misc 3d 22, 23 [App Term, 9th & 10th Jud Dists 2008], quoting People v Hilker, 133 AD2d 986, 987-988 [1987]; see also People v Andrews, 30 Misc 3d 133[A], 2010 NY Slip Op 52357[U] [App Term, 9th & 10th Jud Dists 2010]). An arrest pursuant to Vehicle and Traffic Law § 1192 (1) is authorized upon probable cause that a defendant, by voluntarily consuming alcohol, has actually impaired, to anyextent, his or her ability to operate a vehicle as a reasonable and prudent driver (People v Cruz, 48 NY2d 419, 427 [1979]). The quantum of proof necessary to support an arrest for driving while impaired is "far less rigorous" than that required for driving while intoxicated (People v Gingras, 22 Misc 3d at 24, quoting People v Reding, 167 AD2d 716, 717 [1990]).

In addition to the arresting officer's observations of defendant's operation of her vehicle, which included speeding and weaving, the hearing testimony established that, during the roadside investigation, defendant exhibited glassy, bloodshot eyes, slurred speech, and the odor of an alcoholic beverage on her breath, and she admitted that she had been drinking beer at a friend's house (see People v McDonald, 27 AD3d 949, 950 [2006]). In the course of roadside sobriety tests, defendant exhibited indicia of the effects of alcohol consumption, including the "jerking" of her eyes on the horizontal gaze nystagmus test and using her arms or hands to steady herself on the remaining tests. "[I]n light of the officer's professional and personal experiences" (People v Bici, 32 Misc 3d 136[A], 2011 NY Slip Op 51474[U], *3 [App Term, 2d, 11th & 13th Jud Dists 2011]), the hearing evidence, "viewed objectively" (People v Nesbitt, 1 AD3d 889, 890 [2003]), established that there was probable cause to arrest defendant for driving while impaired (see e.g. People v McCarthy, 135 AD2d 1113, 1114 [1987]; People v Blajeski, 125 AD2d 582, 582-583 [1986]; People v Bici, 32 Misc 3d 136[A], 2011 NY Slip Op 51474[U],*1; People v Andrews, 30 Misc 3d 133[A], 2010 NY Slip Op 52357[U], *2; People v Grodecki, 2001 NY Slip Op 40537[U], *3 [App Term, 9th & 10th Jud Districts 2001]).

Accordingly, the judgments of conviction are affirmed.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur.

Decision Date: December 10, 2012

20121210

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