People v Ford (Peter)

[*1] People v Ford (Peter) 2010 NY Slip Op 50416(U) [26 Misc 3d 143(A)] Decided on March 9, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and MOLIA, JJ
2007-1352 S CR.

The People of the State of New York, Respondent,

against

Peter M. Ford, Appellant.

Appeal from a judgment of the Justice Court of the Town of Southampton, Suffolk County (Thomas J. DeMayo, J.), rendered July 6, 2007. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated. The appeal from the judgment brings up for review the denial of defendant's pretrial motion for, among other things, the suppression of evidence.

ORDERED that the judgment of conviction is affirmed.

The People charged defendant with, among other offenses, driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). Prior to trial, defendant moved, as relevant to this appeal, to suppress the evidence of his refusal to submit to a chemical test of his blood alcohol content, arguing that there was no probable cause for the initial
stop of his vehicle and that he did not refuse testing within the meaning of Vehicle and Traffic Law § 1194 (2) (f). The Justice Court denied defendant's motion for a probable cause hearing, and, following a refusal hearing, denied suppression of defendant's refusal. After trial, defendant was convicted of driving while intoxicated and acquitted of the remaining charges.

Defendant argues, in essence, that the denial of his motion for a probable cause hearing was error; that the People failed, at the refusal hearing, to establish the propriety of the initial stop; that the hearing evidence did not support the Justice Court's determination that defendant had refused chemical testing within the meaning of Vehicle and Traffic Law § 1194 (2) (f); and that the admission of the refusal evidence was not harmless.

In the course of the hearing, the Justice Court permitted the parties to inquire as to whether the police had lawfully stopped defendant's vehicle, thereby obviating the necessity of a separate hearing on the issue. Defendant declined that invitation and objected to the prosecutor's attempt to develop the record as to the propriety of the stop, thereby waiving any error with respect to the sufficiency thereof. We find no merit to the claims of error with respect to the court's evidentiary rulings, which concerned the arresting officer's estimates of the precise times of the stop, arrest, and refusal, and defendant's attempt to impeach the People's witness with inadmissible documents. The hearing testimony supports the court's determination to deny suppression on any other ground (see People v Thomas, 46 NY2d 100 [1978]; People v Gursey, [*2]22 NY2d 224 [1968]; People v Tetrault, 53 AD3d 558 [2008]; People v Monahan, 295 AD2d 626 [2002]).

Even were we to conclude that the evidence of defendant's refusal to take a chemical test should have been suppressed, in light of the trial evidence, which included proof of defendant's failure to perform three sobriety tests and of defendant's general appearance and conduct at the arrest scene, and defendant's own testimony wherein he admitted to early-hours bar-hopping with three friends, to the consumption of alcoholic beverages, and to operating his vehicle immediately after leaving the last bar, there is no reasonable probability that the failure to suppress the evidence might have contributed to defendant's conviction (People v Freeman, 46 AD3d 1375, 1377 [2007], citing People v Crimmins, 36 NY2d 230, 237 [1975]; see also People v Guzman, 247 AD2d 552 [1998]; People v Whelan, 165 AD2d 313, 325 [1991]). Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: March 09, 2010