People v KALWISS (MICHAEL)

[*1] People v KALWISS (MICHAEL) 2005 NY Slip Op 50057(U) Decided on January 26, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: January 26, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, J.P., ANGIOLILLO and COVELLO, JJ.
2003-1355 OR CR

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,

against

MICHAEL KALWISS, Respondent.

Appeal by the People from an order of the Justice Court, Town of Newburgh, Orange County (J. Werner, J.), rendered July 31, 2003, granting defendant's motion to suppress evidence.

Order unanimously reversed upon the law, defendant's motion to suppress evidence denied and matter remanded for all further proceedings.

On April 17, 2003, at approximately 3:30 A.M., the defendant was observed driving his vehicle with a flat tire in the northbound lane on Route 9W in the Town of Newburgh, during a rainstorm. The officer activated the emergency lights on the police vehicle and stopped the defendant. During the stop, the officer observed that the defendant had glassy eyes and the odor of an alcoholic beverage on his breath.
The defendant stated to the officer that he had too much to drink and that he should not have been driving. The officer administered 2 field sobriety tests which defendant failed. Defendant was then placed under arrest. The court below suppressed the results of the field sobriety tests and defendant's statement on the ground that the stop was unlawful.

We disagree. It is well settled that police may stop a vehicle upon a reasonable suspicion that a violation of the Vehicle and Traffic Law has occurred (see People v Ellis, 62 NY2d 393 [1984]; People v Ingle, 36 NY2d 413 [1975]). "All that is required is that the stop be not 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 these facts, reasonably warrant intrusion" (Ingle, 36 NY2d at 420 [internal quotation marks omitted]). [*2]

Vehicle and Traffic Law § 375 (35) (c) prohibits operation of vehicles that are not equipped with tires that meet the standards established by the commissioner. A motor vehicle may not be operated upon the public highways on a tire which has a fabric break or cut or partial failure of the tire structure (Regulations of the Commissioner of Motor Vehicles [15 NYCRR] § 51.5). Thus, the stop was lawful as the officer had a reasonable suspicion that the defendant was in violation of Vehicle and Traffic Law § 375 (35) (c). We also find that the officer had sufficient probable cause to arrest defendant for violating Vehicle and Traffic Law § 1192 based upon the officer's observations of defendant's physical appearance, odor, the statement that he had been drinking, and the results of the field sobriety tests (see People v Ball, 141 AD2d 743 [1988]). Accordingly, the lower court erred in granting defendant's motion to suppress.
Decision Date: January 26, 2005