People v Cosimano (Philip)

[*1] People v Cosimano (Philip) 2013 NY Slip Op 51141(U) Decided on July 8, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ
2012-49 OR CR.

The People of the State of New York, Appellant,

against

Philip J. Cosimano, Respondent.

Appeal from an order of the Justice Court of the Town of Goshen, Orange County (Thomas C. Cione, J.), entered October 3, 2011. The order, after a hearing, granted defendant's motion to suppress statements and physical evidence.

ORDERED that the order is reversed, on the law, defendant's motion to suppress statements and physical evidence is denied, and the matter is remitted to the Justice Court for all further proceedings.

On August 29, 2011, the People charged defendant in separate accusatory instruments with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), respectively. Defendant moved to suppress statements and physical evidence as the products of an arrest without probable cause. At the suppression hearing, a state trooper testified that, at about 1:05 a.m. on August 29, 2011, while investigating an unrelated traffic incident in a public parking lot adjacent to a public road, he discovered defendant asleep at the wheel of his vehicle, which was parked in the lot. The trooper opened the driver's door to investigate defendant's condition and immediately detected the strong odor of an alcoholic beverage. Upon awakening, defendant, who exhibited several other indicia of intoxication, stated that, earlier in the evening, he had attended a wedding (at a [*2]location known to the trooper to be six to eight miles away); that, after consuming four drinks containing "Johnny Walker," he had left the event in his vehicle to return to his hotel; that, upon realizing that he was "lost," he had entered the parking lot; and that he had been asleep for 20-30 minutes before the trooper had awakened him. Although the engine of defendant's vehicle was not running, the key was in the ignition. The trooper examined the interior of defendant's car and observed no evidence of an alcoholic beverage. Upon exiting his vehicle, defendant stumbled, and the trooper assisted him to regain his balance. After defendant failed three roadside sobriety tests, the trooper arrested defendant, and a chemical test revealed that defendant's blood alcohol content was .14 of one per centum by weight. At the hearing's conclusion, defendant argued that the proof was insufficient to support a determination that there was probable cause to believe that defendant had operated his vehicle while in a condition that violated Vehicle and Traffic Law § 1192. The Justice Court agreed and suppressed the evidence.

The hearing proof sufficed to establish probable cause to arrest defendant for, at the very least, driving while impaired (Vehicle and Traffic Law § 1192 [1]; People v Vandover, 20 NY3d 235, 239 [2012]; People v Cruz, 48 NY2d 419, 427 [1979]; People v Nesbitt, 1 AD3d 889, 890 [2003]; People v McNamara, 269 AD2d 544, 545 [2000]; People v Hilker, 133 AD2d 986, 987-988 [1987]). The operation element of the statute may be proved circumstantially (People v Blake, 5 NY2d 118, 119-120 [1958]; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U] [App Term, 9th & 10th Jud Dists 2012]). In light of defendant's admissions that, after consuming alcoholic beverages, he operated his vehicle over a distance of six to eight miles until he reached the parking lot and that he had been asleep for 20-30 minutes before the trooper encountered him, and in light of the abundant evidence of his intoxication, there was no rational explanation for defendant's presence and condition in the parking lot other than that he was not at the starting point of his journey. Given the absence of any evidence of an alcoholic beverage in defendant's automobile, "all inferences other than simultaneous operation and intoxication [are] excluded" (People v Spencer, 289 AD2d 877, 878 [2001], quoting People v Saplin, 122 AD2d 498, 499 [1986]; see People v Fenger, 68 AD3d 1441, 1442 [2009]; People v Salerno, 36 Misc 3d 151[A], 2012 NY Slip Op 51699[U] [App Term, 9th & 10th Jud Dists 2012]; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U], *1).

Defendant's remaining contention, that since defendant had been discovered merely asleep in his vehicle and otherwise "all right," the trooper had no justification for continuing his investigation, is without merit (see e.g. People v Shaffer, 95 AD3d 1365, 1366 [2012] ["Upon smelling the odor of alcohol on defendant's breath, the Trooper could investigate any possible crime related to defendant's intoxication"]; People v Spencer, 289 AD2d at 879 [arresting officer's "questioning of defendant at the scene as to whether he had been drinking was investigatory rather than custodial interrogation"]). Accordingly, the order is reversed, defendant's motion to suppress evidence is denied, and the matter is remitted to the Justice Court for all further proceedings.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur. [*3]
Decision Date: July 08, 2013