People v Dreier

[*1] People v Dreier 2006 NY Slip Op 50334(U) [11 Misc 3d 1061(A)] Decided on March 9, 2006 County Court, Monroe County DiSalvo, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2006
County Court, Monroe County

The People of the State of New York

against

Jason D. Dreier, Defendant.



25153-05



Casey F. Spencer, Assistant District Attorney

Paul D. Kelly, Esq., Attorney for Defendant

Thomas J. DiSalvo, J.

The defendant was arrested and charged with Common Law

Driving While Intoxicated, VTL 1192(3), Open Container VTL 1227(1) and Failure to Produce

License, VTL 507(2) on October 30, 2005 at 8:43 A.M. Later that morning he was arraigned

before Judge David T. Corretore, who suspended the defendant's driver's license for failure to

submit to the breathalyzer test, pursuant to VTL 1194. Finally, the court set bail in the amount

of $2,500.00 cash or bond. The matter was eventually set down for a Probable Cause/Huntley

hearing on January 27, 2006.

Facts of the Case. The People called Webster Police Officer Michael Burns as the their only witness for

said hearing. Officer Burns testified that on October 30, 2005, at approximately 8:43 A.M. while

he was on routine patrol, he received a 911 call to respond to a man slumped over the wheel of [*2]

his car, which was located in the ESL parking lot on Ridge Road in the Town of Webster. Upon

his arrival Officer Burns observed a blue minivan, which was not in a designated parking spot.

The minivan was facing east and apparently in the middle of the parking lot. The defendant's

vehicle was surrounded by a number of individuals. Upon approaching the vehicle, the officer

observed that the defendant, who appeared to be asleep behind the wheel. As a result, the officer

opened the driver's door and vigorously shook the defendant. Officer Burns was able to detect

that the defendant had a pulse and was breathing. The defendant then began to mumble

something to the officer. Officer Burns again shook the defendant and inquired as to whether

the defendant had any relevant medical issues. This time the defendant stated that he was fine

and was coming from a friend's house. The officer asked him if he was diabetic or epileptic.

The defendant advised the officer that he did not suffer from any of those conditions. Officer

Burns ordered the defendant out of the vehicle at this time, whereupon the defendant was

observed to stumble. The officer observed him lean back to get his balance. During that time

the officer detected a strong odor of an alcoholic beverage on the defendant's breath and

observed tat the defendant had red, blood shot eyes, and that the defendant's speech was slurred.

The defendant could not produce a driver's license, but did identify himself as Jason Dreier.

At that time the defendant was asked to perform various roadside tests. The first test was

the "Alphabet Test". The defendant was asked to recite the alphabet from "C" to "V". The

defendant missed the letters G, H and I and recited "X, Y and Z". As a result, the officer

testified that the defendant failed the test. The defendant was then asked to perform the "Finger

to Nose Test". The officer testified that the defendant failed this test because he touched his lip

with his right index finger and touched his left nostril with this left index finger. The officer [*3]

then performed the Horizontal Gaze Nystagmus Test. The officer testified, that based on his

observations of the defendant's eyes, the defendant failed this test. Next the defendant was asked

to perform the "Walk and Turn" Test. The officer testified that the defendant failed this test,

because he stepped off the yellow line that was used for the test, and that the defendant raised his

arms while he walked.

Based on his observations of the defendant, the officer formed the opinion that the

defendant was not mentally and physically capable of driving his vehicle. He then arrested him

for driving while intoxicated. While still in the ESL parking lot the arresting officer then

advised the defendant of his Miranda rights. The defendant indicated that he understood his

rights and agreed to speak to the officer. The relevant questions and answers were as follows:

Question: Were you operating a motor vehicle?

Answer: Huh?

Question: Where?

Answer: Right There.

Question: When?

Answer: Earlier.

Question: Have You been drinking?

Answer: Yes.

Question: What?

Answer: Beer.

Question: How much?

Answer: A couple. [*4]

Question: Where?

Answer: A friends house.

Officer burns testified that he took a written statement from a Mary Ruebens, who was the

woman who supposedly called 911. The people then offered that written statement into evidence.

The written statement indicated among other things, that Ms. Ruebens had turned off the engine

of the defendant's minivan, when she opened the door of the vehicle to examine the defendant.

The defense objected to said written statement being entered into evidence on three grounds.

First, the pre-trial hearings had previously been adjourned, so this was the second time that said

witness was not produced by the people. Second, the written statement of the witness was

hearsay. Third, because failure to produce said witness violated the defendant's right of

confrontation.

On cross-examination Officer Burns indicated that he found an open bottle of

Rum which was found in the front passenger side of the defendant's vehicle. The 357 ml bottle

of Captain Morgan Original Spiced Rum was entered into evidence by defense counsel. The

officer testified that two-thirds of the rum was missing. However, the officer conceded he did

not know who consumed the missing rum or when it was consumed. The officer testified that he

never saw the defendant operate the vehicle, and that the car was not running when he arrived on

the scene. In fact, he testified that he did not observe a key in the vehicle's ignition. Officer

Burns testified that he had been working the night shift and that he had previously passed by the

location in question, without noticing the defendant's van. As a result, he did not know when the

defendant's van arrived at the scene.

Issues Presented. [*5]

Were the statements made by the defendant voluntarily given?

Must the witness testify at a pre-trial hearing in order to make her written statement

admissible into evidence? Did the officer have reasonable cause to arrest the defendant for driving while intoxicated,

when neither the officer nor the reporting witness observed the defendant operate

the motor vehicle?

Legal Analysis.

A. Voluntariness of Statements. The issue of the voluntariness of a statement is

governed by CPL 60.45. CPL 60.45(1) forbids the entry into evidence of a defendant's

statement if same was given involuntarily. CPL 60.45(2) describes what would make a

statement involuntary. Lastly, "In People v. Huntley, 15 NY2d 72, 255 N.Y.S.2d 838, 204

N.E.2d 179 (1965), the Court concluded that it is the People's burden to establish, beyond a

reasonable doubt, that a statement was voluntarily made." Handling The DWI Case in New York,

(2004-05 Edition) page 562, 563.

In the instant case the police officer testified to providing the defendant with his Miranda

rights. The officer testified that the defendant both understood his rights and that the defendant

agreed to speak with him. The officer further testified that no promises or threats were made to

get the defendant to speak to him. The court finds the testimony of Officer Burns to be credible.

Based on the evidence presented at this hearing, the People have met their burden relative to the

voluntariness of the defendant's statements. As a result, the motion to suppress the defendant's

statements is hereby denied. [*6]

B. Admissibility of Written Statement.

Defense counsel objects, based on hearsay grounds, to the admissibility of the written

witness statement being admitted into evidence without said witness being called to testify.

Instead, the statement was offered into evidence after Officer Burns testified that he took the

statement from the witness. CPL 710.60(4), in reference to pre-trial suppression hearings states,

that "... hearsay evidence is admissible to establish every material fact." See also CPL 70.10(2)

which permits hearsay to be used to establish "reasonable cause" if the evidence submitted is

determined to be reliable. As previously indicated, the instant hearing is referred to as a

"probable cause" hearing. "While the Criminal Procedure Law contemplates suppression hearings

in regard to such areas as confessions, searches, and identification, there

is no mention of probable cause hearings. The most frequently cited authority

for the probable cause hearing is Dunaway v. New York, 442 U.S. 200, 99 S.Ct.

2248 , 60 L.Ed 2d 824 (1979)." Handling the DWI Case In New York

(2204-05) at Page 42, 43.

In any event, the only caveat is that a finding of probable cause cannot be based "... solely on

hearsay evidence." People v. Randall, (3rd Dept 1987) 135 AD2d 915, 916, 522 N.Y.S.2d

314,315. See Also, People v. Havelka 45 NY2d 636, 412 N.Y.S.2d 345 (1978).

In this case there is independent evidence of the defendant's intoxication. In particular

there is the direct observations of the defendant by the arresting officer, who testified to seeing

the defendant asleep behind the wheel of his minivan, to observing the defendant displaying

physical indicia of intoxication and to the defendant's failure of the various roadside tests.

As a result, the written statement of Mary Ruebens, who allegedly called 911 to report seeing the

defendant slumped over the wheel of his vehicle, is admitted over the objection of the defendant. [*7]

Based on the above reasoning the Court finds the remaining issues raised by the defendant in

opposition to the entry into evidence of the written witness statement to be without merit.

C. Probable Cause.

The Criminal Procedure Law utilizes the phrase "reasonable cause" instead of "probable

cause" CPL 70.10(2). However these phrases "... are used interchangeably". Handling the

DWI Case In New York (2004-05) at page 38. CPL 70.10(2) states that " Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."'

A review of CPL 70.10(2) seems to indicate that the legislature intended to establish a reasonable

person standard relative to determining if reasonable cause to arrest exists. Nevertheless, the

Court of Appeals in People v. Carrasquillo, 54 NY2d 248, 252, 445 N.Y.S.2d 97,100 (1981)

stated that "In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice People v. De Bour, 40 NY2d 210, 216, 386 N.Y.S.2d 375, 352 N.E.2d 562, supra; People v. Corrado, 22 NY2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526; La Fave, Street Encounters' and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich.L.Rev. 40, 73-75). In making such a judgment, we must also bear in mind that [i]n dealing with probable cause * * * we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act' ( Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L.Ed. 1879)." [*8]

In this case neither the arresting officer nor the reporting witness ever saw the defendant

operating a vehicle. However, it is clear that operation of a motor vehicle can be established by

circumstantial evidence. See People v. Booden, 69 NY2d 185, 188, 513 N.Y.S.2d 87,89. In

addition The Office of Court Administration Pattern Jury Instructions states that

"A person also OPERATES a motor vehicle when such person is sitting behind

the wheel of a motor vehicle for the purpose of placing it in operation, and when

the motor vehicle is moving, or even if it is not moving, the engine is running.

CJI(NY) (2d ed.) VTL 1192, at 1002-03 (footnote omitted)." Handling the DWI

Case in New York (2004-05 Edition) at Page 56.

Observation of the defendant actually driving a motor vehicle is not a necessary element of

Driving While Intoxicated. "Our courts have long recognized that the definition of operation is

broader than that of driving ...." People v. Prescott, 95 NY2d 655, 663, 722 N.Y.S.2d 778, 782

(2001).

Despite the fact that the defendant was never observed driving the van in which he was

found, the evidence produced at the probable cause hearing established that the defendant

was observed at about 8:43 A.M. behind the wheel of a motor vehicle, whose engine was

running; that there was an open bottle of rum found next to the defendant; that the defendant was

observed to be asleep by the reporting witness and the arresting officer; that the defendant's

vehicle was located in a parking lot, but was not in a designated parking spot; that no one other

than the defendant was in the vehicle; that the defendant exhibited various indicia of

intoxication; that the defendant failed various road side sobriety tests; that the defendant

admitted consuming beer; and that the defendant admitted to driving the vehicle "earlier".

The evidence produced at the Probable Cause/Huntley hearing appears reliable and [*9]

sets out facts and circumstances which collectively were of such weight and persuasiveness

that would convince a person of ordinary intelligence, judgment and experience that it is

reasonably likely and more probably than not, that the offenses charged herein were committed

and that the defendant committed them. Therefore defendant's motion to suppress use of all

tangible evidence obtained by the people, pursuant to CPL 710.20(1), 710.20(4) and 710.70(1),

because of a lack of probable cause to arrest the defendant is hereby denied.

Conclusion.

The written statement of the reporting witness is admissible into evidence for purposes of

the pre-trial suppression hearing. The defendant's motions to suppress the statements of the

defendant and to suppress any tangible evidence obtained by the People are also denied. The

case is restored to the disposition calender on Apri1 5, 2006 at 1:00 P.M. This constitutes the

decision and order of the Court.

Dated: Webster, New York

March 9, 2006

_____________________________________

Hon. Thomas J:. DiSalvo

Webster Town Justice