People v Heller (Timothy)

[*1] People v Heller (Timothy) 2010 NY Slip Op 51463(U) [28 Misc 3d 138(A)] Decided on August 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2008-1483 OR CR.

The People of the State of New York, Appellant,

against

Timothy Heller, Respondent.

Appeal from an order of the Justice Court of the Town of Crawford, Orange County (Bryan M. Kulak, J.), dated June 6, 2008. The order granted defendant's motion to suppress physical evidence and statements.

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

Following his arrest for driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]) and other offenses, defendant moved to suppress incriminating statements and the results of a chemical test of the alcohol content of his blood. After a combined
Mapp/Huntley hearing, the Justice Court found that the statements had been preceded by a proper rendering and waiver of the Miranda warnings. The court, however, suppressed the evidence on the ground that the People had failed to establish, through nonhearsay proof, that defendant had operated his motor vehicle while intoxicated. The People appeal and we reverse.

In its return and amended return, the Justice Court stated that, on hearsay grounds, it had precluded Trooper Delassandro, the arresting officer, from testifying that fellow officer Sergeant Meier had informed Delassandro that he (Meier) had observed defendant operating his motor vehicle shortly before defendant had appeared at the Town of Crawford police station to "pick up" a friend. Delassandro was permitted to testify that he encountered defendant inside the station house, that defendant's apparently intoxicated condition prompted him to investigate, and that defendant was arrested following his inability to perform physical sobriety tests. A blood alcohol test produced a reading of .14% by weight.

The testimony that Trooper Delassandro sought to offer concerning what Sergeant Meier had told him should not have been precluded, since hearsay is admissible to establish any material fact at a hearing on a motion to suppress evidence (CPL 710.60 [4]; People v Edwards, 95 NY2d 486, 491 [2000]; People v Parris, 83 NY2d 342, 347 [1994]; People v Norman, 304 AD2d 405 [2003]; see 1 LaFave, Search and Seizure § 3.2 [d], at 56 [4th ed]). Furthermore, information conveyed to an officer by a fellow officer is presumptively reliable (People v Ketcham, 93 NY2d 416, 420 [1999]), and where the testifying officer at a probable cause hearing establishes that the information conveyed to him by a non-testifying fellow officer was based on [*2]the non-testifying officer's firsthand observations, the conveyed information may properly contribute to establishing probable cause on the part of the testifying officer (People v Ketcham, 93 NY2d at 420; People v Petralia, 62 NY2d 47, 51-52 [1984]; People v Rivera, 170 AD2d 625, 626 [1991]). It was not necessary that the People produce Sergeant Meier at the hearing (see Petralia, 62 NY2d at 51-52; see also People v Rumble, 60 AD3d 791 [2009]; People v Green, 13 AD3d 646 [2004]), and due process is satisfied where, as here, the defendant can question the testifying officer about the non-testifying officer's identity, his or her relationship to the offense's commission and the basis of his or her knowledge of the facts imparted to the arresting officer (Edwards, 95 NY2d at 491). Thus, Trooper Delassandro should have been permitted to complete the proof as to probable cause by supplementing his testimony about encountering the apparently intoxicated defendant at the police station with testimony about what Sergeant Meier had told him concerning defendant's operation of his motor vehicle shortly before defendant entered the station house.

Even without such testimony, however, there was sufficient evidence to prove that Delassandro had probable cause with respect to operation, because the information contained in Delassandro's combined supporting deposition/DWI bill of particulars form, which the Justice Court admitted into evidence without challenge by the defense, established such probable cause for purposes of the hearing. The form, which is duly sworn to, states that Sergeant Meier had informed Trooper Delassandro that he (Meier) had personally observed defendant operating his motor vehicle on a public road near the Town of Crawford, and in the police station parking lot, minutes before defendant had entered the station house. Consequently, the People met their burden, in the first instance, of demonstrating probable cause to arrest defendant for driving while intoxicated.

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., LaCava and Iannacci, JJ., concur.
Decision Date: August 13, 2010