People v Andrews (Justin)

[*1] People v Andrews (Justin) 2010 NY Slip Op 52357(U) [30 Misc 3d 133(A)] Decided on October 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2009-1048 OR CR.

The People of the State of New York, Appellant,

against

Justin Andrews, Respondent.

Appeal from an order of the Justice Court of the Town of Blooming Grove, Orange County (Christopher J. Turpin, J.), dated May 4, 2009. The order, insofar as appealed from, granted so much of defendant's motion as sought to suppress all post-arrest evidence.

ORDERED that the order, insofar as appealed from, is reversed, on the law, so much of defendant's motion as sought to suppress all post-arrest evidence is denied, and the matter is remitted to the Justice Court for all further proceedings.

Insofar as is relevant to this appeal, defendant was charged in separate simplified informations with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). Defendant
subsequently moved to suppress all evidence, including his statements and the results of a chemical blood alcohol test, on the ground that there was no probable cause for his arrest. Following a hearing on the motion, the Justice Court suppressed all post-arrest evidence.

On appeal, the People contend that the Justice Court improperly excluded hearsay evidence at the hearing. Since it is well settled that hearsay testimony is admissible at a pre-trial hearing "to establish any material fact" (CPL 170.60 [4]; see also People v Myrick, 10 Misc 3d 138[A], 2005 NY Slip Op 52197[U] [App Term, 9th & 10th Jud Dists 2005]), we find that the court erroneously determined that the police officer, the People's sole witness, could not provide hearsay testimony regarding another officer's administration of field sobriety tests on defendant.

The People also contend that the Justice Court erroneously determined that there was no probable cause for defendant's arrest. To determine whether an arrest is constitutional, the evidence adduced, when "viewed objectively" (People v Nesbitt, 1 AD3d 889, 890 [2003]; see also People v Ryan, 23 Misc 3d 130[A] 2009 NY Slip Op 50661[U] [App Term, 9th & 10th Jud [*2]Dists 2009]), must show that the arresting officer had probable cause to believe that the defendant had committed a crime, which crime need not necessarily be the crime with which the defendant was actually charged (see People v Gingras, 22 Misc 3d 22 [App Term, 9th & 10th Jud Dists 2008]).

Upon a review of the evidence, we find that the officer's testimony, that he observed defendant driving a vehicle which twice crossed over the double yellow line, and crossed over the fog line once, along with the officer's observations that defendant had red glassy eyes and that an odor of alcohol emanated from defendant's body, as well as defendant's admission that he had consumed three Heineken beers, was sufficient to establish that the officer had probable cause to arrest defendant at least for driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), if not driving while intoxicated (Vehicle and Traffic Law § 1192 [3]).
Accordingly, the order, insofar as appealed from, is reversed and so much of defendant's motion as sought to suppress all post-arrest evidence is denied.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: October 21, 2010