Opinion
17183.
Decided April 8, 2005.
Appellant Michael P. Corteux, by Richard V. Manning, Esq.
Respondent People of the State of New York, by Gary W. Miles, Esq.
Acting District Attorney, Laurie Paro, Esq., A.D.A. of counsel.
Defendant appeals from the September 8, 2004 judgment of the Justice Court of the Town of Potsdam (Duvé, J.), convicting him after bench trial of driving while ability impaired, and imposing a fine and surcharge. Defendant also specifically appeals from that court's interlocutory order dated July 28, 2004, denying suppression after a hearing.
The suppression hearing concerned the legality of the stop of defendant's vehicle. Defendant argued that the police lacked probable cause to stop his car, and that the resulting observations leading to his arrest for driving while ability impaired were tainted by the claimed illegality of the stop. At the hearing the court found (see recital of facts in the court's decision, A-31-A-32) that a telephone company repairman on a country road passed a white Dodge Neon parked at an unusual angle. As the repairman passed the Dodge, the repairman saw a male inside the Dodge, apparently on top of a woman. The male waived to the repairman, seemingly indicating that he should keep going. The repairman made no telephone report and did not stop by the Dodge. About fifteen minutes later, still on country roads where he was setting up traffic warning cones before doing line maintenance work, he flagged down a passing state trooper, and told him about the white Dodge he had seen, and the two occupants, and the fact that the repairman was concerned about what he had observed. He asked the trooper to take a look if he was going that way. The repairman had not noted the license plate of the Dodge, and simply described it for the trooper in terms of location, make and color, and possibly identified it as a Dodge Neon.
The trooper went looking for the white Dodge. On a nearby road, approximately one-quarter to one-half mile from where the trooper had spoken to the repairman, the trooper noted a white Dodge coming in the opposite direction, towards him. The driver was a male, and a female was in the front passenger seat. The trooper then reversed his own direction and pulled the Dodge over. When the trooper approached the driver to ask for identification and to ask preliminary investigative questions, the trooper noted sufficient indications of alcohol consumption (smell from the vehicle, driver with glassy eyes) to prompt him to have defendant leave the vehicle and perform some field sobriety tests. These, in turn, led to defendant's arrest.
At the hearing the repairman and the trooper testified. It was clear that the trooper saw no erratic driving nor any Vehicle Traffic Law violation. No arrest was made for anything other than the charge of driving while ability impaired.
Essentially, the hearing court focused on whether the trooper had sufficient information, based on the repairman's report, to justify stopping defendant's car. At the hearing, defendant challenged only the basis for the stop, arguing that People v. Robinson, 97 NY2d 341 (2001) changed the standard for a valid vehicle stop from reasonable suspicion to probable cause (A-17-A-23), a more stringent test, requiring a higher level of fact-based suspicion. The People concurred in the need for a hearing (A-27) in order to resolve factual questions about what took place.
The hearing court rejected defense counsel's characterization of the holding in Robinson, and found instead that the standard for a police officer to stop a moving vehicle for investigative purposes is one of reasonable suspicion. People v. Chilton, 69 NY2d 928 (1987). The court also cited People v. Sobotker, 43 NY2d 559, 562 (1978) as defining `reasonable suspicion' to be "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand. The requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere `hunch' or `gut reaction' will not do."
See People v. Cantor, 36 NY2d 106, 112-113 (1975).
The court found that reasonable suspicion may rest not only on the officer's own observations, but on information from others, People v. Buckley, 147 AD2d 898 (4th Dept 1989) and that where the source of the information is known, as was true here (the repairman), the information may be corroborated by independent verification of details which do not themselves necessarily indicate criminal activity. People v. DiFalco, 80 NY2d 693 (1993). Here the court found (A-32) that the information available to Trooper Rozler after talking with the repairman was sufficient to give the trooper reasonable suspicion that criminal activity (specifically, a possible assault on the female passenger in defendant's car) was at hand. Moreover, the court found that the description of the white Dodge Neon, on a sparsely-traveled rural road was sufficiently unique to justify the conclusion that defendant's vehicle might well be the same one as was described by the repairman. Based on these findings, the hearing court denied suppression. At a pre-trial hearing on a motion in limine, the court barred the People from using a Breathalyzer test result. After trial the court found defendant guilty of driving while his ability was impaired.
On the appeal defendant first argues that Trooper Rozler lacked even reasonable suspicion to stop defendant's vehicle. Alluding to trial proof, defendant points out that the stop took place in late morning; the description of the white vehicle given to the trooper by the repairman was quite vague; the repairman gave no description of the vehicle occupants, other than to refer to them as a man and a woman; Rozler did not question defendant as to whether he was the driver parked earlier as noted by the repairman; there was a discrepancy between testimony and the traffic information as to what road the car was on when first observed; there was no description of facts in the repairman's report to the trooper suggesting that there was any sort of struggle going on. Despite these arguments, appellant's counsel does not concede that reasonable suspicion, rather than probable cause, is the standard for a police stop of a moving vehicle. The People's position on appeal is that the hearing court properly applied the correct standard of reasonable suspicion, reaching the correct result.
An investigative stop of a moving automobile requires reasonable suspicion on the part of the officer. People v. Spencer, 84 NY2d 749 (1995); People v. May, 81 NY2d 725 (1992); People v. Sobotker, 43 NY2d 559 (1978); People v. Ingle, 36 NY2d 413 (1975); People v. Howell, 111 AD2d 768 (2nd Dept 1985), lv. den. 65 NY2d 982; People v. Rosario, 94 AD2d 329 (2nd Dept 1983). To this court, that long line of precedent is not in conflict with the holdings in People v. Robinson, 97 NY2d 341 (2001) and People v. Kearney, 14 AD3d 938, (3rd Dept 2005), both cited by appellant, that probable cause is required for a valid vehicle stop to arrest for an observed violation of the Vehicle Traffic Law.
To be sure, variation in the fact pattern leading up to the stop will properly affect the decision as to whether or not the officer had a reasonable suspicion that criminal activity was at hand. Compare People v. Pena, 242 AD2d 545 (2nd Dept 1997) [vehicle stop justified by complainant's report that vehicle occupants had tried to pull him over]; People v. Spencer, 84 NY2d 749 (1995) [police stop of defendant's vehicle to ask defendant if he knew where person they were looking for could be found was unwarranted intrusion]; People v. Walters, 213 AD2d 810 (3rd Dept 1995) [citizen complaint about erratic driving, added to officer's own observation of same conduct justified stop]; People v. Howell, 111 AD2d 768 (2nd Dept 1985) [officer saw car matching one described in recent burglaries; on approach car began to drive away when officer shone light into vehicle; stop warranted]; People v. Rosario, 94 AD2d 329 (2nd Dept 1983) [arriving at scene of reported burglary in progress, officer sees car without lights pull out at high speed from gas station two doors down from scene of burglary; stop justified]; People v. Flannagan, 56 AD2d 289 (1st Dept 1977) [identified citizen reported overhearing conversation between occupant of white-topped tan vehicle and another person next to that car, in which speaker said he had a gun and would like to shoot another person; stop justified].
In the present case the issue centers on whether the information available to Trooper Rozler justified a concern that criminal activity was at hand. While reasonable people might differ on the answer to that question, it was a question for the hearing court to resolve. In reviewing that court's decision on appeal, this court is required to give great deference to the findings made by the suppression court, because that court alone had the advantage of seeing and hearing the witnesses. People v. Prochilo, 41 NY2d 759 (1977); People v. Morales, 210 AD2d 173 (1st Dept 1994); People v. Cleveland, 257 AD2d 689 (3rd Dept 1999). Indeed, the Cleveland court wrote that the hearing court's determination "will remain undisturbed unless unsupported as a matter of law ( People v. Leonti, 18 NY2d 384, 390, cert. denied 389 US 1007)". 257 AD2d 689, 691. In the present case the hearing court's decision was not unsupported as a matter of law, and therefore should not be disturbed.
Appellant's second issue on this appeal is that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. Appellant directs his sufficiency challenge to the proof that his ability was impaired; he concedes adequate proof that he was driving.
As part of his objection to the sufficiency of the evidence, appellant challenges the decision of Town Court to admit proof of the horizontal gaze nystagmus test (HGN test), one of several field sobriety tests administered by Trooper Rozler. As the trial court correctly held, the admissibility of the HGN test result does not any longer require proof that the test itself is scientifically reliable and accepted in the relevant scientific community. People v. Vanderlofske, 186 Misc 2d 182 (Greene Co Ct 2000); People v. Gallup, 302 AD2d 681 (3rd Dept 2003), appeal den. 100 NY2d 594; People v. Grune, 12 AD3d 944 (3rd Dept 2004); People v. Prue, 2001 NY Slip Op 40594U (Franklin Co Ct 2001), affirmed 8 AD3d 894 (3rd Dept 2004), app. den. 3 NY3d 680. It is interesting to note that Vanderlofske is cited with approval by the South Dakota Supreme Court in State v. Hullinger, 2002 SD 83, 649 NW2d 253 (2002), a decision which collects HGN cases from around the country and notes that a substantial majority of states now permit HGN test results to be admitted in evidence without a prior hearing to establish scientific reliability of the test itself.
In order to prove that defendant's ability to drive was impaired by the consumption of alcohol, the People must prove that consumption of alcohol impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver. Criminal Jury Instruction pattern charge for driving while ability impaired, based on People v. Cruz, 48 NY2d 419, 427 (1979). See also, People v. Lizzio, 178 AD2d 741 (3rd Dept 1991) ; People v. Reding, 167 AD2d 716 (3rd Dept 1990); People v. Wirtz, 128 AD2d 745 (2nd Dept 1987).
When reviewing a judgment for legal sufficiency to support a verdict, this court must view the evidence in a light most favorable to the People, because of the underlying conviction at trial. People v. Contes, 60 NY2d 620 (1983); People v. Bush, 14 AD3d 804 (3rd Dept 2005); People v. Chapin, 265 AD2d 738 (1999), lv. den. 94 NY2d 917(2000). From that perspective the court must consider whether there was any valid line of reasoning and permissible inferences from the testimony which could lead a rational person to the conclusion that defendant drove while his ability was impaired by the consumption of alcohol. People v. Bleakley, 69 NY2d 490 (1987). Here, although Trooper Rozler did not observe any erratic driving, he noted a smell of alcohol from the vehicle, saw that defendant's eyes were glassy and bloodshot, and observed his performance on three field sobriety tests, each of which the trooper believed, based on his training and experience, that defendant had failed. Defendant admitted that he had four beers earlier that morning (the arrest was at approximately 11:30 a.m.). The trooper formed, and expressed, the opinion that defendant was intoxicated. Collectively, this evidence was legally sufficient to support defendant's conviction beyond a reasonable doubt.
Nor was the verdict against the weight of the evidence. In assessing this claim the court reviews the evidence in a neutral light, weighing the relative probative force of any conflicting testimony and the relative strength of any conflicting inferences that may be drawn from the testimony. People v. Bush, 14 AD3d 804 (3rd Dept 2005); People v. Herring, 305 AD2d 855 (2003), lv. den. 100 NY2d 582 (2003). Under such review the appellate court may set aside the verdict if, based on all the credible evidence a different finding would not have been unreasonable and if the trier of fact has failed to give the evidence the weight it should be accorded. People v. Cahill, 2 NY3d 14 (2003). This court does not perceive that the trial court failed to give the evidence the weight it deserved, and there was no conflicting testimony.
Accordingly, the verdict was not against the weight of the evidence.
The judgment of the Justice Court of the Town of Potsdam is therefore affirmed. So ordered.