People v Hillman (Avriel)

[*1] People v Hillman (Avriel) 2021 NY Slip Op 50233(U) Decided on March 18, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2019-1813 W CR

The People of the State of New York, Appellant,

against

Avriel Hillman, Respondent.

Westchester County District Attorney (Christine DiSalvo and William C. Milaccio of counsel), for appellant. Barket Epstein Kearon Aldea & LoTurco, LLP (Donna Aldea of counsel), for respondent.

Appeal from an order of the City Court of Mount Vernon, Westchester County (Adrian N. Armstrong, J.), dated October 4, 2019. The order, insofar as appealed from, after a hearing, granted the branch of defendant's motion seeking to suppress all evidence obtained subsequent to her arrest.

ORDERED that the order, insofar as appealed from, is reversed, on the law, the branch of defendant's motion seeking to suppress all evidence obtained subsequent to her arrest is denied, and the matter is remitted to the City Court for all further proceedings.

Defendant was charged with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]), driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), making an unsafe lane change (Vehicle and Traffic Law § 1128 [a]), and driving below minimum speed (Vehicle and Traffic Law § 1181 [a]). Defendant subsequently moved to, among other things, suppress all evidence, including her statements and the results of a breath test, on the ground that there was no probable cause for her arrest.

At a probable cause hearing, the arresting officer testified that, while on patrol, he had observed defendant's vehicle being operated erratically. The officer then activated the emergency lights and a dashboard camera recording device on his patrol car, followed behind defendant's vehicle, and ultimately effected a traffic stop. The officer arrested defendant after administering three field sobriety tests to defendant. Following the hearing, the City Court found that the initial [*2]stop of defendant's vehicle for a traffic infraction was lawful. The court, however, held that probable cause was absent from defendant's arrest and consequently granted the branch of defendant's motion seeking to suppress the evidence obtained subsequent to her arrest. The People now appeal. On appeal, the People certify that absent the suppressed evidence they cannot prosecute any of the charges (see CPL 450.20 [8]; 450.50 [1]).

Probable cause for an arrest requires "information sufficient to support a reasonable belief that an offense has been or is being committed" (People v Bigelow, 66 NY2d 417, 423 [1985]). In determining the propriety of an arrest for violating Vehicle and Traffic Law § 1192, "[t]he only valid inquiry . . . is whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the [arresting] officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor" (People v Farrell, 89 AD2d 987, 988 [1982]). Consequently, "the legality of [such] an arrest . . . is not conditioned upon whether the arresting officer specified the correct subdivision of Vehicle and Traffic Law § 1192, or upon his [or her] belief as to which subdivision had been violated. All that is required is that [the officer] have had reasonable cause to believe that defendant had violated Vehicle and Traffic Law § 1192" (People v Hilker, 133 AD2d 986, 987-988 [1987]; accord People v Freeman, 37 Misc 3d 142[A], 2012 NY Slip Op 52281[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v Gingras, 22 Misc 3d 22, 23 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; see People v Andrews, 30 Misc 3d 133[A], 2010 NY Slip Op 52357[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). An arrest for violating Vehicle and Traffic Law § 1192 (1) "is authorized upon probable cause that a defendant, by voluntarily consuming alcohol, has actually impaired, to any extent, his or her ability to operate a vehicle as a reasonable and prudent driver" (People v Freeman, 37 Misc 3d 142[A], 2012 NY Slip Op 52281[U], *2; see People v Cruz, 48 NY2d 419, 427 [1979]). "The quantum of proof necessary to support an arrest for driving while impaired is far less rigorous than that required for driving while intoxicated" (People v Freeman, 37 Misc 3d 142[A], 2012 NY Slip Op 52281[U], *2 [internal quotation marks and citations omitted]; see People v Maher, 52 Misc 3d 136[A], 2016 NY Slip Op 51043[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

Here, although the People do not challenge, nor is there a basis to disturb, the City Court's finding that the field sobriety tests were administered improperly to defendant, thereby stripping the test results of any probative value (see generally People v Prochilo, 41 NY2d 759, 761 [1977]), the failure to establish that the tests had been properly administered does not in and of itself necessarily diminish the strength of the remaining proof of the existence of probable cause because "probable cause need not always be premised upon the performance of field sobriety tests or any specific number of such tests" (People v Kowalski, 291 AD2d 669, 670-671 [2002] [citations omitted]; see People v Wallgren, 94 AD3d 1339, 1341 [2012]; People v Fenger, 68 AD3d 1441, 1443 [2009]). At the probable cause hearing, the arresting officer testified that, before the dashboard camera recording device was activated, he had observed defendant's vehicle being operated erratically, including traveling at an "extremely slow" speed (i.e., 20 to 25 miles per hour in a 45 miles per hour zone) impeding traffic on a public highway, alternately slowing down and speeding up, and failing to maintain a lane. After defendant's vehicle was stopped, the officer observed defendant exhibit classic signs of intoxication—having "extremely" bloodshot, watery eyes and an odor of alcohol on her breath—and defendant admitted that she had [*3]consumed alcohol earlier that night.

Following the hearing, the court expressly found the officer's foregoing testimony to be credible—a finding that must be accorded deference unless clearly unsupported by the record (see People v Bookman, 131 AD3d 1258, 1260 [2015], affd 28 NY3d 967 [2016]; People v Cruz-Rodriguez, 68 Misc 3d 126[A], 2020 NY Slip Op 50843[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020])—and there is no reason on this record to disturb that credibility determination. However, contrary to the court's conclusion, we find that the evidence of defendant's erratic driving, defendant's appearance, the odor of alcohol and defendant's admission to alcohol consumption was sufficient to provide the officer with probable cause to arrest defendant at least for driving while ability impaired, if not driving while intoxicated (see People v Lewis, 124 AD3d 1389, 1390-1391 [2015]; People v Andrews, 30 Misc 3d 133[A], 2010 NY Slip Op 52357[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; see also People v Tieman, 112 AD3d 975, 976 [2013]; People v Troche, 162 AD2d 483, 483 [1990]; People v Ramirez, 62 Misc 3d 146[A], 2019 NY Slip Op 50203[U] [App Term, 1st Dept 2019]; People v Williams, 55 Misc 3d 134[A], 2017 NY Slip Op 50478[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v Wachausen, 33 Misc 3d 10, 12-13 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; People v Creer, 31 Misc 3d 1, 2 [App Term, 1st Dept 2010]; People v Davis, 23 Misc 3d 30, 32 [App Term, 2d Dept, 9th & 10th Jud Dists 2009]; People v Grodecki, 2001 NY Slip Op 40537[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2001]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking to suppress all evidence obtained subsequent to her arrest is denied.

RUDERMAN, P.J., GARGUILO and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 18, 2021