People v Veloce (Ashley)

[*1] People v Veloce (Ashley) 2012 NY Slip Op 50304(U) Decided on February 15, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2010-2798 OR CR.

The People of the State of New York, Appellant,

against

Ashley N. Veloce, Respondent.

Appeal from an order of the Justice Court of the Town of Montgomery, Orange County (Harry J. Mills, J.), dated September 20, 2010. The order granted defendant's motion, after a hearing, to suppress defendant's statements.

ORDERED that the order is affirmed.

The People charged defendant with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and common law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). The arresting officer's arrest report, and the combined supporting deposition and DWI bill of particulars, both of which were admitted into evidence at a probable cause/Huntley hearing, stated that the offenses had occurred "at or about 1:53 A.M.," that defendant had been arrested at the same time, and that when the arresting officer had reached the scene, he had encountered defendant seated behind the wheel of her vehicle. At the hearing, the officer testified that, in response to a police radio report transmitted at 1:53 A.M., the officer had encountered defendant and another person standing near an automobile, the driver's side window of which had been smashed. After speaking with defendant, who admitted having operated the vehicle and having consumed an alcoholic beverage, and who exhibited glassy, bloodshot eyes, the officer administered five roadside sobriety tests, four of which defendant failed. The officer then arrested defendant. After being transported to the station house, defendant waived her Miranda rights and admitted that she had consumed more than one alcoholic beverage. Defendant consented to a breath test, which revealed a blood alcohol content of .14 of one per centum by weight. [*2]

Citing the "irreconcilable differences" between the supporting deposition and the hearing narrative as to where defendant was located when the officer first reached the scene and the time of the incident and arrest, the Justice Court adopted the officer's notation on the supporting deposition that the arrest had occurred at 1:53 A.M., concluded that the arrest, which had preceded the investigation, had been without probable cause, and suppressed defendant's roadside admissions as to the operation of the vehicle and the consumption of alcohol. On appeal, the People, noting that the order necessarily also suppresses the results of the roadside sobriety tests, defendant's subsequent admissions, and the chemical test results, argue that the suppression order is not supported by the hearing evidence and that the motions to suppress evidence should be denied. The order is affirmed.

Appellate courts must accord great deference to the determinations of a finder of fact, who has the opportunity to hear and assess a witness's demeanor, to evaluate inconsistencies in testimony, and to determine what portion, if any, of a witness's testimony to credit (e.g. People v Greene, 84 AD3d 540 [2011]; People v Barrett, 14 AD3d 369 [2005]). A hearing court's credibility determinations will not be disturbed where they find support in the record (People v Hardie, 64 AD3d 666, 667 [2009]).

In our opinion, the contradictions noted by the Justice Court implicate "material facts necessary to establish probable cause" (Matter of Robert D., 69 AD3d 714, 717 [2010]; see also Matter of Bernice J., 248 AD2d 538, 539 [1998]). Under the circumstances, and in light of the court's particular opportunity to observe the arresting officer's general demeanor, we find no basis to disturb the court's factual determinations.
Accordingly, the order suppressing evidence is affirmed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: February 15, 2012