People v Tanner (Susan)

[*1] People v Tanner (Susan) 2010 NY Slip Op 51473(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2009-789 OR CR.

The People of the State of New York, Appellant,

against

Susan Slater Tanner, Respondent.

Appeal from an order of the Justice Court of the Town of Chester, Orange County (Joseph J. Ranni, J.), dated February 25, 2009. The order, insofar as appealed from, granted the branch of defendant's motion seeking to suppress evidence based on a lack of probable cause to arrest.

ORDERED that the order, insofar as appealed from, is reversed, on the law, the branch of defendant's motion seeking to suppress evidence based on a lack of probable cause to arrest is denied, and the matter is remitted to the Justice Court for all further proceedings.

Informations were filed charging defendant with, among other things, driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while
intoxicated (Vehicle and Traffic Law § 1192 [3]). Following a probable cause and Huntley hearing, the Justice Court, finding that defendant had been lawfully stopped but that there was no probable cause for the arrest, suppressed the evidence. The instant appeal by the People ensued.

The testimony adduced at the hearing indicates that on a snowy night in February 2008, a police officer stopped defendant's car after observing that there was heavy damage to its front right side, its right headlight was pointing skyward and it had no rear plate light. The officer went over to the driver's side window and asked defendant if she had been in an accident and whether she had consumed any alcoholic beverages that night. Defendant replied that she had not been in an accident and had consumed "just one spritzer." The officer also observed that defendant's speech was "slow and slurred" and her "eyes were watery and glassy," and he "smelled an odor of alcohol emitting from the vehicle." When the officer asked defendant to exit her vehicle, defendant "kind of pulled herself out using the frame of the opened door and also the frame of the vehicle. When she stepped out, she was stumbling. She was holding on to the vehicle." Defendant performed one field sobriety test, which she failed. The officer did not ask defendant to perform more tests because he decided that he could not safely, or adequately, administer the tests on the slippery road surface. When he showed defendant the damage to her vehicle, defendant was unaware of the damage and stated that she did not know what had happened.

Although the court apparently found the testimony of the police officer to be credible, it did not find that the evidence was legally sufficient to establish probable cause for defendant's [*2]arrest. Upon a review of the hearing testimony, however, we find, considering all the facts and circumstances together, that the officer had probable cause to believe that defendant had violated Vehicle and Traffic Law § 1192 (see People v Hilker, 133 AD2d 986, 988 [1987]; People v Gingras, 22 Misc 3d 22 [App Term, 9th & 10th Jud Dists 2008]; see also CPL 140.10 [1] [b]; People v Bigelow, 66 NY2d 417, 423 [1985]; People v Wright, 8 AD3d 304, 307 [2004]; People v Grodecki, 2001 NY Slip Op 40537[U] [App Term, 9th & 10th Jud Dists 2001]). Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking to suppress evidence based on a lack of probable cause to arrest is denied.

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