People v O'Brien

[*1] People v O'Brien 2007 NY Slip Op 51089(U) [15 Misc 3d 1141(A)] Decided on May 29, 2007 City Court Of New Rochelle Colangelo, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2007
City Court of New Rochelle

The People of the State of New York, Plaintiff,

against

Robert O'Brien, Defendant.



06-1482



MICHAEL BORRELLI

Assistant District Attorney

New Rochelle Branch

475 North Avenue

New Rochelle, NY 10801

STEWART MCMILLAN, ESQ.

McMillan, Constabile, Maker & Perone

2180 Boston Post Road

Larchmont, NY 10538

Attorney for Defendant

John P. Colangelo, J.

In the early evening hours of August 6, 2006, Defendant Robert O'Brien ("Defendant" or "O'Brien") was arrested without a warrant and issued two simplified traffic informations charging him with Driving While Intoxicated pursuant to Vehicle and Traffic Law ("VTL")  1192.3 and refusal to submit to a chemical test under VTL  1194.2. Shortly before his arrest, Defendant allegedly made certain statements to the police, principally to the arresting officer, Police Officer Wenzler, and the People served and filed a CPL 710.30 notice at arraignment. Several months thereafter, Defendant requested and the People consented to two hearings: a Huntley hearing concerning the voluntariness, or lack thereof, of Defendant's alleged statements to the police, and a Mapp hearing concerning the propriety of Defendant's warrantless arrest for driving while intoxicated, and whether probable cause existed for it.

The Hearings

A combined Huntley and Mapp hearing was held on February 21, 2007. For purposes of the hearing, the Court has considered the evidence adduced in the light most favorable to the [*2]People. The People called Officer Wenzler, and he was the sole witness at the hearing. Officer Wenzler testified that at 8:46 p.m. on August 6, 2006, he came upon the Defendant apparently asleep behind the wheel of his car, slumped over in the driver's seat, a half empty bottle of Smirnoff vodka lodged between his legs and an open can of Budweiser beer at his feet. Also at his feet were the keys to his car. The car was on Church Street, parked in a rather haphazard manner; as Officer Wenzler testified, the front bumper of Defendant's car was up against and "connected" onto the rear bumper of the car directly in front of it. Neither Defendant's vehicle nor the car in front of it exhibited signs of major damage; a few scratches naturally attendant with the contact of bumpers and a dent on the bumper of the vehicle not owned by Defendant were the only apparent vestiges of the physical encounter of the two cars.

As Officer Wenzler approached the half-open window of Defendant's car, he noticed a "strong odor" of alcohol coming from the car and from Defendant. He also detected the smell of urine and observed that the groin area of Defendant's pants was soiled. Officer Wenzler roused Defendant from his slumber and asked to see his identification. According to the officer, Defendant's eyes were bloodshot and glassy, his breath smelled of alcohol and he seemed confused. Defendant took approximately five minutes to find his wallet which, as it turned out, was in his back pants pocket. Officer Wenzler then asked Defendant to exit his car. O'Brien did so gingerly, then swayed, staggered and generally had trouble standing upright. At that point, Officer Wenzler asked Defendant if he had been driving. Defendant replied that he had, and stated that he had accidently struck the car in front of him while trying to park his vehicle at around 8 p.m., adding "I must have fallen asleep." Defendant was then asked if he had been drinking. O'Brien replied that he had left his home at approximately 4 p.m., that he had been drinking while "driving around" and that he had "done something wrong." O'Brien was not asked, and he did not specifically state, precisely when he had started or stopped drinking. Officer Wenzler testified that at the time O'Brien made these statements, Defendant was not in custody nor was he in handcuffs, and that he was free to leave.

Officer Wenzler then administered several field sobriety tests, all of which Defendant failed. Defendant was then placed under arrest and taken to police headquarters where Officer Wenzler read Miranda and DWI warnings to him. Defendant refused to submit to a chemical test, and his driver's license was suspended.

The Huntley Issue: Voluntariness of Defendant's Statements.

At the hearing and in his post-hearing submission, Defendant's counsel did not appear to seriously challenge the voluntariness of the statements made by O'Brien to Officer Wenzler, and for good reason: even though Miranda warnings had yet to be given, the statements were made in response to legitimate preliminary and pre-custodial inquiries which were investigatory in nature. Accordingly, such questioning did not run afoul of the Miranda rule. See, e.g. People v. Hanna, 185 AD2d 482 (3rd Dept. 1992) ("The police officer's questioning of defendant at the place where defendant's vehicle had been stopped for a traffic violation about whether he had been drinking and driving was clearly investigatory rather than custodial interrogation."); People v. Spencer, 289 AD2d 877 (3rd Dept. 2001). Based on the evidence adduced at the hearing, nothing about the statements or the circumstances surrounding them suggest that they were coerced or involuntary for any other reason. Moreover, under the attendant circumstances a motorist apparently unconscious in a car, with the bumper of his car connected to another on a public [*3]street Officer Wenzler certainly had a legitimate basis under People v. DeBour, 40 NY2d 210 (1976) to approach Defendant and ask the rudimentary questions that he posed.

Accordingly, Defendant's motion to suppress the statements made by him to Officer Wenzler is denied, and the statements are admissible at trial.

The Mapp Hearing: The Warrantless Arrest and Probable Cause.

With respect to the Mapp hearing, Defendant contends, in essence, that Officer Wenzler had neither probable cause to arrest nor the authority to effect a warrantless arrest of O'Brien for Driving While Intoxicated. Defendant's entire argument is predicated on three alleged facts, the existence of which are supported, at least in part, by Officer Wenzler's testimony and the CPL  710.30 notice filed by the People: (1) Officer Wenzler did not specifically ask Defendant the precise time at which he started and finished drinking alcohol and, since the CPL  710.30 notice also lacks such specificity, neither Officer Wenzler nor the Court could definitively determine whether O'Brien was driving while intoxicated, or became intoxicated, if at all, after his car had been parked; (2) Officer Wenzler did not observe Defendant operating his vehicle and since the ignition keys were on the car's floor when the officer arrived, no presumption of operation arises; and (3) even assuming that O'Brien made statements that could be deemed an admission of driving and drinking, the damage to his and the other vehicle was so slight that it could not be considered an "accident or collision" necessary under VTL 1194.1(a) to support a warrantless arrest for driving while intoxicated under the circumstances present here namely, when the vehicle's operation and the accident or collision occur outside the arresting officer's presence. The People argue that Defendant's admission to drinking while driving along with other indicia of Defendant's intoxication, coupled with the apparent collision, however slight, of his vehicle with another provide sufficient support for the warrantless arrest on the charge of driving while intoxicated as well as the probable cause for it.

For the reasons set forth below, the Court holds that for purposes of this hearing, the People have sustained the burden of proof, and that Officer Wenzler properly effected Defendant's arrest.

The CPL 710.30 Notice

Defendant argues that the People may not rely on Defendant's purported statements to Officer Wenzler to the effect that Defendant had been drinking and driving to establish the propriety of O'Brien's arrest because the CPL 710.30 notice filed by the People is defective in that it does not reflect a precise inquiry by Officer Wenzler as to when Defendant started and stopped drinking alcohol. Defendant's argument, however, misapprehends the nature and purpose of a CPL 710.30 notice. The law is clear that the statute does not demand such a punctilio of specificity concerning what a defendant said to the police, or what a police officer asked a defendant, nor does CPL 710.30 impose an affirmative obligation on an officer to make any particular inquiry. All that CPL 710.30 demands is a fair summary of a defendant's statement and when and where it was made; a complete rendition of Defendant's statement need not be supplied so long as the statement is described sufficiently so that the defendant can identify it. In other words, a CPL 710.30 notice need not be a verbation transcript; the gist or sum and substance of what a defendant related is all that the statute prescribes so that a defendant can identify it and decide whether it is subject to challenge on any number of grounds. See e.g., People v. Lopez, 84 NY2d 425 (1994) ("The People were required [under CPL 710.30] to inform [*4]defendant of the time and place the oral and written statements were made and of the sum and substance of those statements . . . Full copies of the statements need not be supplied but they must be described sufficiently so that the defendant can intelligently identify them."); People v. Bridges, 226 AD2d 471 (2d Dept. 1996).

A comparison of the CPL 710.30 notice served by the People in the instant case with Officer Wenzler's testimony concerning Defendant's statement reveals that the notice, as filed, plainly satisfies the statutory criteria. The CPL 710.30 notice reflects Defendant's statement, in summary, that he left his home several hours before he was awakened by Officer Wenzler and that he had been "driving around town and drinking alcohol" before colliding with another vehicle while trying to park essentially the statement related by Officer Wenzler in his hearing testimony. The mere fact that Officer Wenzler may not have asked Defendant the precise time at which he started and finished drinking although such information was at least in part volunteered by O'Brien is of no moment as far as the propriety of the CPL 710.30 notice is concerned. That notice, even absent the precise information Defendant claims is lacking, is plainly a sufficient summary and gives adequate notice to Defendant as to the statement in the People's possession and its general contents, and thereby comports with statutory requirements. Accordingly, the People may use and the Court may consider Defendant's statements as testified to at the hearing. Moreover, as discussed more fully below, the statements made by O'Brien, in conjunction with the other circumstances that obtained at the time of his arrest, support the propriety of the warrantless arrest and the determination that probable cause existed for it.

VTL  1194.1: The Alleged "Accident or Collision"

Defendant also contends that assuming arguendo the truth of Officer Wenzler's account, no "accident or collision" within the meaning of VTL  1194.1 occurred. Accordingly, Defendant argues, Officer Wenzler was not authorized to effect a warrantless arrest of O'Brien for driving while intoxicated since no indicia of motor vehicle operation, independent of Defendant's own statement, was present at the time of the arrest. O'Brien apparently concedes, for purposes of the hearing, that his vehicle came into contact with a second vehicle, but argues that the damage to each was so slight that the incident did not amount to an "accident" or "collision" under the statute. The People, in turn, concede that facts which often give rise to a presumption of motor vehicle operation such as presence of a defendant in a car with the motor running or, at the least, with the keys in the car's ignition are absent here. (See, e.g. People v. Collins, 70 AD2d 986 (3rd Dept. 1979); People v. David W., 83 AD2d 690 (3rd Dept. 1981)). Nonetheless, the People maintain that under  1194.1, the accident or collision present here, however minor, when coupled with surrounding circumstances indicative of vehicle operation by and intoxication of Defendant, validate O'Brien's warrantless arrest. An examination of the nature and purpose of Vehicle and Traffic 1194.1 sustains the People's position.

VTL 1194.1(a) provides as follows:

"1194. Arrest and testing. 1. Arrest and field testing. (a) Arrest. Notwithstanding theprovisions of section 140.10 of the criminal procedure law, a police officer may, withouta warrant, arrest a person, in case of a violation of subdivision one of section elevenhundred ninety-two of this article, if such violation is coupled with an accident orcollision in which such person is involved, which in fact has been committed, though not[*5]in the police officer's presence, when the officer has reasonable cause to believe that theviolation was committed by such person." (Emphasis added).

This statute, however, cannot be fully understood without examining the section of the Criminal Procedure Law to which it refers, CPL  140.10. Section 140.10, by its terms, restricts the authority of a police officer to effect a warrantless arrest in certain circumstances to situations where a person has "committed an offense in his presence" (emphasis supplied). (Cf. CPL 60.50). As an exception to the rule of CPL  140.10, VTL  1194.1 (a) is clearly intended to expand the authority of a police officer to effect an arrest without a warrant, rather than as a constraint upon such authority, as Defendant suggests in his papers. In other words, the plain purpose and intent of VTL  1194.1 is to afford a police officer who personally observed neither an intoxicated driver nor a motor vehicle accident the authority to effect a warrantless arrest pursuant to the driving while intoxicated or impaired sections of the Vehicle and Traffic Law ( 1192.1, et. seq.) as long as evidence of an "accident or collision" is extant and indicia of intoxication are present, even though an arrest for another type of offense under similar circumstances might well be proscribed.

In view of this plain statutory intent, and consistent with its evident purpose, courts have liberally interpreted this provision to permit warrantless arrests under VTL  1192 and  1193 when the alleged "accident or collision" appears even less serious than a non-injury producing fender bender. Indeed, a physical touching of two vehicles, or of the defendant's vehicle with some other animate or inanimate object that produces any damage, however slight, has been held sufficient to constitute an "accident or collision" under  1194.1 (a).

For example, in Matter of Van Wormer v. Toffany, 28 AD2d 941 (3rd Dept. 1967), the Third Department affirmed a determination of the Commissioner of Motor Vehicles that defendant's warrantless arrest for driving while intoxicated was proper despite the fact that the police officer did not see an accident or the operation of a vehicle by defendant, defendant made no admission of operation, and the damage to his car was at best "negligible". The court relied on  1194.1 (a) and objective indicia of both operation and defendant's intoxication to sustain the Commissioner's findings. As the court stated:

"[The trooper found petitioner behind the steering wheel of a car which had gone offthe south shoulder of that highway and had come to rest in a ditch with the car headed tothe north. The officer said that the right fender had been "banged" against the ditch andthat there were streaks of dirt rubbed from that fender, as though by contact, although thedamage was "negligible". When the petitioner alighted from the car, his "speech wasthick, he staggered about and he smelled of alcohol." He was arrested and thereupondeclined the officer's request that he submit to the test. From these and the other attendantcircumstances proven, the administrative agency was justified in finding a valid arrest,without a warrant, for a violation of section 1192, which had in fact been committed,although not in the officer's presence; inasmuch as an accident and collision in whichpetitioner had been involved were clearly demonstrated as was the additional necessaryingredient of reasonable cause on the part of the officer to believe that petitioner, whileintoxicated had operated the car from the highway into the ditch."

[*6]Id. (Emphasis supplied).

Similarly, in Brown v. Hults, 24 AD2d 1068, 1069 (3rd Dept. 1965), the court affirmed the Commissioner's ruling at a refusal hearing that the state trooper's arrest of defendant for violating VTL 1192 was proper even though the alleged accident amounted to no more than defendant "bumping into the bumper" of the car directly in front of defendant's car, coupled with defendant's admission that "he had been driving the car and that he had been drinking."See also, People v. Blake, 5 NY2d 118 (1958) (Evidence that defendant was found "alone in a drunken state in his automobile which was damaged and halted against a guardrail", combined with defendants admission that "he had attended a party and was returning to his home", held sufficient to support defendant's conviction for driving while intoxicated); People v. Booden, 69 NY2d 185 (1987); People v. Spencer, 289 AD2d 877 (3rd Dept. 2001).

In the instant case, the uncontroverted testimony of Officer Wenzler was to the effect that evidence of an "accident or collision", however minor, between Defendant's car and the car in front of it was present when he arrived at the scene: the bumpers of the cars were "connected," and a dent or dents were visible. To be sure, the visible damage to either vehicle was, as in Van Wormer, "negligible" at best. However, as Van Wormer, Brown and related cases make plain, evidence that an accident or collision occurred, albeit minimal, is all that  1194.1 requires.

Of course, more than an "accident or collision" is necessary in order to effect such a warrantless arrest for driving while intoxicated. As noted above and as the cases show, other objective factors that would support a reasonable conclusion, from all the surrounding circumstances, that the defendant was operating his or her vehicle while under the influence of alcohol must also be present. Here, as in Van Wormer and Brown, such other factors are manifestly present. The smell of alcohol on Defendant, his staggering when out of his vehicle (as in Van Wormer), along with Defendant's admission to Officer Wenzler that he had been drinking while driving his car (as in Brown), buttress Officer Wenzler's conclusion that he had probable cause to effect a DWI arrest.

Indeed, in other cases that resulted in ultimate convictions of defendants for DWI offenses, appellate courts have held that a reasonable finder of fact could properly conclude beyond a reasonable doubt at trial, on circumstantial evidence similar to that testified to by Officer Wenzler herein, that a defendant did commit the charged offense thus supporting, a fortiori, a finding that the lesser standard of probable cause to arrest was met in the instant case. As the Court held in People v. Booden, 69 NY2d 185 (1987) in reversing the County Court and affirming the DWAI conviction of defendant Booden:

"There was sufficient corroborative evidence in this case that the offense of driving whileimpaired had been committed on the evening in question. The vehicle owned bydefendant's father was found in a ditch, facing the wrong direction of travel; the pavementof the highway was dry, negativing suggestions of an accidental skid; defendant and hiscompanions were standing next to the vehicle when the investigating officerarrived and, when defendant and his companions were asked who had been driving thevehicle, defendant volunteered to answer the question and produced his identification,indicating by his conduct that he was the driver. The officer noticed that defendantexhibited outward [*7]signs of intoxication and his breath smelled of alcohol. Thecircumstances of the accident may have been capable of innocent explanation, but theynonetheless supported an inference that a crime had been committed because the vehiclehad been driven by a person under the influence of alcohol."

Id. at 187-188. See also, e.g., People v. Blake, 5 NY2d 118 (1958) (The Court held that sufficient proof had been adduced at trial to support defendant's conviction for driving while intoxicated when "defendant [was] found alone in a drunken state in his automobile which was damaged and halted against a guardrail and defendant admitted he had attended a party". . . [W]hile "it is conceivable that someone else drove the car against the guardrail . . . we are convinced that the proof in the record satisfies the test for circumstantial evidence to a degree sufficient in law to sustain the conviction"); People v. Spencer, 289 AD2d 877 (3rd Dept. 2001).

In the instant case, the facts and circumstances that are present including the minor "accident or collision", Defendant's physical condition and appearance at the time he was approached by Officer Wenzler, an open bottle of vodka on O'Brien's lap and a beer can at his feet, and, more importantly, his admission to drinking and driving lend support to Officer Wenzler's conclusion that O'Brien had been driving while intoxicated. To be sure, here, as in Booden, Spencer, and Blake, the issue of whether the factual circumstances, as testified to at the hearing, support the charge that O'Brien was not only drinking while driving (as he admitted to Officer Wenzler) but driving while intoxicated will be, as it should, a question for the ultimate fact finder to decide. By the same token, it is readily apparent from the same factual circumstances that a reasonable police officer could well conclude that there was "reasonable cause to believe" that such an offense had been committed (VTL  1194.1(a)).

Parenthetically, the Court notes that Defendant O'Brien's reliance on the Fourth Department case of June v. Toffany, 34 AD2d 732 (4th Dept. 1970) is misplaced. In June, in contrast to the instant case, the court found that "there was no evidence of an accident" and no damage reported to any vehicle or other object. (Id.) Moreover, in June, the defendant did not admit, as O'Brien did, to drinking while driving. Rather, defendant in June sought to explain his erratic behavior at the scene by citing a pre-existing medical condition a brain concussion.Thus, June is, as it should be, confined to its peculiar set of facts.

Accordingly, with respect to the Mapp aspect of the hearing, the Court holds that Defendant's arrest without a warrant was proper, and that Officer Wenzler had probable cause to effect it.

The parties are directed to appear on May 30, 2007 at 9:30 a.m. for further proceedings.

The foregoing constitutes the Decision and Order of this Court. [*8]

DATED: New Rochelle, New York

May 29, 2007

__________________________________

John P. Colangelo

City Judge