Opinion
2017-1870 S CR
02-28-2019
The PEOPLE of the State of New York, Appellant, v. Matthew L. KUROVICS, Respondent.
Suffolk County District Attorney (Rosalind C. Gray of counsel), for appellant. Steven M. Politi, for respondent (no brief filed).
Suffolk County District Attorney (Rosalind C. Gray of counsel), for appellant.
Steven M. Politi, for respondent (no brief filed).
PRESENT: THOMAS A. ADAMS, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
ORDERED that the order is reversed, on the law, the branches of defendant's omnibus motion seeking to suppress statements, blood alcohol test results, and observations of defendant's physical condition on the ground that defendant's arrest had been without probable cause are denied, and the matter is remitted to the District Court for a determination of the branches of defendant's omnibus motion seeking to suppress evidence on other grounds, in accordance with this decision and order.
The People charged defendant, in simplified traffic informations, with various Vehicle and Traffic Law violations; in an information, with aggravated driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192 [2-a ] [a] ); and, in separate superseding informations, with driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192 [2 ] ) and driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3 ] ), alleging that, on February 3, 2014, while operating his motor vehicle with a blood alcohol content of .42 of one per centum by weight, defendant had crossed double yellow lines separating his lane of travel from oncoming traffic and collided with another vehicle head-on. Defendant was removed from the accident scene to a hospital for emergency room treatment, in the course of which he exhibited several indicia of intoxication and admitted to an investigating officer that he had "crashed [his] car" and that he had consumed "enough, oh enough" vodka.
Defendant made an omnibus motion seeking to, among other things, suppress statements, blood alcohol test results and observations of his physical condition on the ground, among others, that there was a lack of probable cause to arrest him. At a combined Mapp /Dunaway /Huntley hearing, a police officer testified that, at the scene of the head-on collision, the driver of the other vehicle involved in the collision had informed him that defendant, whom the officer had observed lying unconscious near his heavily damaged automobile, which was smoking and on fire, was the operator of that vehicle. The officer put out the fire and recovered from the automobile a wallet containing defendant's driver's documentation.
A second police officer testified that he had received a police radio report of a 911 call that had been made by a nurse from a hospital to the effect that an operator of a vehicle involved in a motor vehicle accident was intoxicated, and the nurse asked whether the operator was under arrest or would be arrested. Upon the officer's arrival at the hospital, a nurse indicated to him that the suspected intoxicated operator was defendant, who was then occupying a cubicle in the emergency room, and a superior officer informed him by telephone that, if defendant was determined to have been the operator and exhibited indicia of intoxication, he should be arrested. The officer detected a strong odor of an alcoholic beverage in the cubicle, and, before initiating questioning of defendant, he observed that defendant exhibited bloodshot, glassy eyes. Defendant admitted to the officer that he had been involved in an automobile accident and that he had consumed alcoholic beverages. As defendant spoke, the officer detected a speech impairment and the strong odor of an alcoholic beverage on defendant's breath. Defendant subsequently consented to a blood test to determine his blood alcohol content, and, when defendant's blood was sent to a lab for testing, the officer arrested defendant.
Following the hearing, the District Court determined that defendant had been arrested without probable cause, noting that the People had failed to produce an eyewitness to defendant's operation of his vehicle and to defendant's state of intoxication at the time of the accident. The court also concluded that the hospital questioning was impermissible given the information known to the second officer, and that the request that defendant submit to a blood test did not, therefore, comply with Vehicle and Traffic Law § 1194 (2) (a). The court reached no other questions. The People appeal, and we reverse.
"Probable cause ... ‘does not require proof ... beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed [by the defendant]’ " ( People v. Guthrie , 25 N.Y.3d 130, 133, 8 N.Y.S.3d 237, 30 N.E.3d 880 [2015], quoting People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ; see e.g. People v. Newcomb , 58 Misc. 3d 153(A), 2018 N.Y. Slip Op. 50145(U), 2018 WL 735619, *1 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2018] ). In other words, " ‘it need merely appear more probable than not that [an offense] has taken place and that the one arrested is its perpetrator’ " ( People v. Wright , 8 A.D.3d 304, 307, 778 N.Y.S.2d 59 [2004], quoting People v. Hill , 146 A.D.2d 823, 824, 536 N.Y.S.2d 566 [1989] ; see also CPL 70.10 [2 ]; People v. Mercado , 68 N.Y.2d 874, 877, 508 N.Y.S.2d 419, 501 N.E.2d 27 [1986] ; People v. Williams , 127 A.D.3d 1114, 1116, 7 N.Y.S.3d 434 [2015] ). To establish probable cause, the People were required to prove that defendant operated a vehicle while in a condition that violated any subsection of Vehicle and Traffic Law § 1192, but it was not necessary that they produce "eyewitness testimony that the defendant had actually been observed operating the vehicle" ( People v. Ramlall , 47 Misc. 3d 141(A), 2015 N.Y. Slip Op. 50621(U), 2015 WL 1879998, *1 [App. Term, 2d Dept., 11th & 13th Jud. Dists. 2015] ; see also People v. Booden , 69 N.Y.2d 185, 187-188, 513 N.Y.S.2d 87, 505 N.E.2d 598 [1987] ; People v. Blake , 5 N.Y.2d 118, 120, 180 N.Y.S.2d 775, 154 N.E.2d 818 [1958] ; People v. Dunster , 146 A.D.3d 1029, 1030, 44 N.Y.S.3d 272 [2017] ; People v. Turner , 34 Misc. 3d 159(A), 2012 N.Y. Slip Op. 50443(U), 2012 WL 762586, *1 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2012] ), since " ‘operation ... can be proved by circumstantial evidence’ " ( People v. Zou , 56 Misc. 3d 136(A), 2017 N.Y. Slip Op. 50996(U), 2017 WL 3401575, *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017], quoting People v. Salerno , 36 Misc. 3d 151(A), 2012 N.Y. Slip Op. 51699(U), 2012 WL 3870090, *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2012] ). "As a general rule, hearsay is admissible at a suppression hearing" ( People v. Edwards , 95 N.Y.2d 486, 491, 719 N.Y.S.2d 202, 741 N.E.2d 876 [2000] ; see CPL 710.60 [4 ] ), and, at a probable cause hearing, probable cause "may be supplied, in whole or in part through [such] information" ( People v. Bigelow , 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 ; see e.g. People v. Griswold , 155 A.D.3d 1658, 1659, 64 N.Y.S.3d 450 [2017] ). Here, the driver of the vehicle involved in the head-on collision with defendant's vehicle informed the first officer that defendant was the operator of the adverse vehicle. " ‘An identified citizen informant is presumed to be personally reliable’ " ( People v. Divine , 147 A.D.3d 1082, 1082, 47 N.Y.S.3d 453 [2017], quoting People v. Parris , 83 N.Y.2d 342, 350, 610 N.Y.S.2d 464, 632 N.E.2d 870 [1994] ). It is well settled that where it is "a police officer who imparts to fellow officers information gathered while personally participating in or observing [an incident] there is little doubt as to the reliability of the informant [police officer] or the basis of knowledge" ( People v. Ketcham , 93 N.Y.2d 416, 420, 690 N.Y.S.2d 874, 712 N.E.2d 1238 [1999] ). "A police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting ‘upon the direction of or as a result of communication with’ a fellow officer or another police agency in possession of information sufficient to constitute probable cause" ( id. at 419, 690 N.Y.S.2d 874, 712 N.E.2d 1238, quoting People v. Mims , 88 N.Y.2d 99, 113, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ; see e.g. People v. Cuevas , 140 A.D.3d 1313, 1314-1315, 34 N.Y.S.3d 212 [2016] ; People v. Williams , 61 Misc. 3d 133(A), 2018 N.Y. Slip Op. 51481(U), 2018 WL 5260854, *1 [App. Term, 2d Dept., 11th & 13th Jud. Dists. 2018] ). Defendant was then identified by driver's documentation found in his wallet, which the officer had recovered from the inside of defendant's vehicle. Defendant was transported from the accident scene to a hospital, where he was later approached by the second testifying officer. Although the first officer did not testify as to whom he had imparted his information with respect to defendant's involvement as the operator of a vehicle involved in a traffic accident, based on the circumstantial evidence presented at the hearing, we may infer that the first officer conveyed his information to the superior officer who communicated with the second officer at the hospital authorizing defendant's arrest if it was determined that defendant was intoxicated at the time he was operating his vehicle (see People v. Mims , 88 N.Y.2d at 114, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; People v. Herbert , 147 A.D.3d 1208, 1209, 47 N.Y.S.3d 500 [2017] ; People v. Darby , 287 A.D.2d 300, 731 N.Y.S.2d 683 [2001] ).
Even without accepting the foregoing inference to establish defendant's operation of a motor vehicle for probable cause purposes, defendant's admissions in the hospital that he had "crashed [his] car" which he had been "driving" sufficed to establish the element of operation. Further, the second officer's approach to defendant in the hospital pursuant to an accident investigation was entirely proper given what he knew on the basis of the nurse's 911 call and the information received at the hospital as to defendant's involvement in an automobile accident. Defendant's admissions and the physical indicia of intoxication, under the facts presented, were elicited pursuant to the common-law right of inquiry, which requires only a founded suspicion that criminal activity was afoot (see People v. Hollman , 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992] ; People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; People v. Karagoz , 143 A.D.3d 912, 913, 39 N.Y.S.3d 217 [2016] ). Thus, defendant's statements were not the product of custodial interrogation and required no Miranda waiver as a predicate to their admissibility (see e.g. People v. Bongiorno , 243 A.D.2d 719, 719, 663 N.Y.S.2d 861 [1997] ; see also People v. O'Hanlon , 5 A.D.3d 1012, 773 N.Y.S.2d 633 [2004] [and citations therein] ). Certainly, "a reasonable person, innocent of any crime, would not have believed that he was in police custody at a hospital following [an] accident" ( People v. Ragen , 140 A.D.3d 1092, 1092, 33 N.Y.S.3d 739 [2016] ; see also People v. Jones , 11 A.D.3d 902, 903-904, 782 N.Y.S.2d 322 [2004] ), and, under the circumstances, the investigatory questions were no less permissible than had they been posed at an accident scene.
Further, " ‘the legality of an arrest ... is not conditioned upon ... the arresting officer['s] ... belief as to which subdivision [of Vehicle and Traffic Law § 1192 ] had been violated. All that is required is that [the officer] have had reasonable cause to believe that defendant had violated [that section]’ " ( People v. Maher , 52 Misc. 3d 136(A), 2016 N.Y. Slip Op. 51043(U), 2016 WL 3692972, *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2016], quoting People v. Hilker , 133 A.D.2d 986, 987-988, 521 N.Y.S.2d 136 [1987] ). The indicia of actual intoxication observed at the hospital by the second officer, along with the fact of defendant's involvement in an automobile accident, which itself " ‘may be construed to circumstantially suggest diminished motor control or impaired driving judgment by reason of [alcohol] consumption’ " ( People v. Koszko , 57 Misc. 3d 47, 50, 62 N.Y.S.3d 682 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017], quoting People v. Maher , 52 Misc. 3d 136(A), 2016 N.Y. Slip Op. 51043(U), *2 ; see also People v. Green , 59 Misc. 3d 134(A), 2018 N.Y. Slip Op. 50490(U), 2018 WL 1735427, *2 [App. Term, 2d Dept., 11th & 13th Jud. Dists. 2018] ), justified defendant's arrest "at the very least for driving while impaired" ( People v. Cosimano , 40 Misc. 3d 132(A), 2013 N.Y. Slip Op. 51141(U), 2013 WL 3501817, *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2013] [and citations therein] ), and it is irrelevant what additional or other offenses might ultimately have been charged ( People v. Maher , 52 Misc. 3d 136(A), 2016 N.Y. Slip Op. 51043(U), *2). Given defendant's discovery in an unconscious state at an accident scene and defendant's removal to the hospital, where defendant inferentially remained until interviewed by the second officer, the possibility that defendant had access to alcohol in the interim may be discounted.
Accordingly, the order is reversed, the branches of defendant's omnibus motion seeking to suppress statements, blood alcohol test results, and observations of defendant's physical condition on the ground that defendant's arrest had been without probable cause are denied, and the matter is remitted to the District Court for a determination of the branches of defendant's omnibus motion seeking to suppress evidence on other grounds, in accordance with this decision and order.
ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.