People v Wenz (Gregory)

[*1] People v Wenz (Gregory) 2006 NY Slip Op 51194(U) [12 Misc 3d 134(A)] Decided on June 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 22, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2005-741 S CR.

The People of the State of New York, Respondent,

against

Gregory Wenz, Appellant.

Appeal by defendant from judgments of the District Court of Suffolk County, First District (Gaetan B. Lozito, J.), rendered on April 15, 2005. The judgments convicted defendant, after a nonjury trial, of driving while ability impaired and making an unsafe left turn.

Judgments reversed on the law, accusatory instruments dismissed and fines, if paid, remitted.

The defendant's vehicle was stopped by police after he allegedly made an unsafe left turn from Liberty Avenue onto Wellwood Avenue in Lindenhurst at 2:15 A.M. on September 21, 2003. The officer testified that he was speeding, and first saw the defendant's vehicle in the intersection crossing his path 100 feet in front of him. The officer did not see the defendant sooner because his view of the defendant's vehicle was "obscured." When he stopped the defendant for a traffic violation, he detected the odor of an alcoholic beverage emanating from defendant's breath and his eyes were bloodshot. The officer did not conduct field sobriety tests, and the defendant later refused to submit to a chemical test. The defendant was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and making an unsafe left turn (Vehicle and Traffic Law § 1163 [a]). Defendant moved to dismiss the charges on the ground that the officer lacked probable cause to stop his vehicle. The court denied the motion finding that the officer had probable cause to stop the defendant for making an unsafe left turn. After trial, defendant was acquitted of driving while intoxicated, but the court found defendant guilty of the lesser included offense of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), and making an unsafe left turn.

Contrary to defendant's contention, the evidence required to establish probable cause to [*2]justify stopping the defendant's vehicle need not be of such a degree as to constitute proof beyond a reasonable doubt (see People v McRay, 51 NY2d 594, 602 [1980]). The stop by the police was lawful since the officer had probable cause to believe that the defendant had committed a traffic violation (see People v Robinson, 97 NY2d 341, 349 [2001]). However, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that the testimony adduced at trial was insufficient to establish that defendant was guilty of making an unsafe left turn. The People failed to establish that defendant made a left turn without being able to do so with "reasonable safety" (Vehicle and Traffic Law § 1163 [a]). The officer testified that he was speeding and indicated that he was unaware of the posted speed limit. The officer's view was "obscured" and he did not observe defendant starting to enter into the intersection. Nor did the officer notice whether the defendant's vehicle had its headlights on at the time said vehicle came into the officer's view or whether the left turn signal had been activated.

The evidence was also legally insufficient to establish defendant's guilt beyond a reasonable doubt of driving while impaired (Vehicle and Traffic Law § 1192 [1]). The evidence adduced at trial failed to establish that defendant's consumption of alcohol caused him to be incapable of operating his vehicle in a reasonable and prudent manner. No field sobriety tests were administered at the scene by the arresting officer. Defendant's speech was later noted as normal. The defendant remained in his lane of traffic and immediately pulled over after the officer activated the siren and lights of the patrol vehicle. There were no observations by the officer establishing that the defendant was incapable of employing the physical and mental abilities one is expected to possess when operating a vehicle (see People v Cruz, 48 NY2d 419, 427 [1979]; People v Hagman, 175 AD2d 502, 504 [1991]).

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 22, 2006