People v Leinberger (Don)

[*1] People v Leinberger (Don) 2006 NY Slip Op 50737(U) [11 Misc 3d 142(A)] Decided on April 21, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 21, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ
2005-939 OR CR.

The People of the State of New York, Respondent,

against

Don H. Leinberger, Appellant.

Appeal from a judgment of the Justice Court of the Village of Greenwood Lake, Orange County (Nancy Brenner Angelo, J.), rendered June 20, 2005. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated.

Judgment of conviction affirmed.

Following denial of defendant's omnibus motion, seeking, inter alia, suppression of all statements made by defendant and evidence as a result of an allegedly illegal arrest, defendant pleaded guilty to common law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). The plea was entered in satisfaction of charges of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving a vehicle with a passenger over the age of 16 in the front passenger seat unrestrained by a safety belt (Vehicle and Traffic Law § 1229-c [3]). On this appeal, defendant contends that the court erred at the hearing held on his motion in refusing to allow a full exploration of the facts of the stop and in refusing to provide a court reporter to record the minutes of the proceedings.

A stop of a vehicle is permissible based on reasonable suspicion that a traffic infraction has been committed (People v Ingle, 36 NY2d 413 [1975]; People v Nelson, 266 AD2d 730 [1999], lv denied 94 NY2d 865 [1999]). The factual basis required to support a stop is minimal (Ingle, 36 NY2d at 420). An actual violation of the Vehicle and Traffic Law need not even be detectable (id.). All that is required is that the stop not be the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion (id.; see also [*2]Terry v Ohio, 392 US 1, 21 [1968]).

Here, after defendant's vehicle had been stopped as a result of the front passenger's failure to be restrained by a safety belt (Vehicle and Traffic Law § 1229-c [3]), the officer detected the odor of an alcoholic beverage. The officer requested the assistance of another officer in determining whether or not defendant was in fact intoxicated. The second officer detected an odor of an alcoholic beverage on defendant's breath and, after talking with him, decided to have defendant perform certain field sobriety tests. After defendant failed said tests, he was placed under arrest for driving while intoxicated. Based on the foregoing, the officers had reasonable suspicion to stop the vehicle and to inquire as to defendant's intoxication and thereafter, probable cause to make the arrest.

As to defendant's contention that it was error to hold the hearing without a stenographer being present, the Justice Court is not a court of record (Judiciary Law § 2) and a stenographer is not required to take minutes of the proceeding (see UJCA 1704, 2021).

Rudolph, P.J., Angiolillo and Tanenbaum, JJ., concur.
Decision Date: April 21, 2006