| People v Farnsworth |
| 2015 NY Slip Op 09319 [134 AD3d 1302] |
| December 17, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jennifer L. Farnsworth, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Kristin T. Foust of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered October 7, 2014, upon a verdict convicting defendant of the crime ofdriving while intoxicated.
In August 2013, Daniel Bornt, a State Trooper, responded to a dispatch callregarding a suspicious vehicle on a residential street in the Town of Malta, SaratogaCounty. Bornt discovered defendant's car, with its head and brake lights turned on,pulled over to the right side of the road but obstructing the traffic flow. After pullingover behind defendant's car and activating his emergency lights, Bornt approacheddefendant's car, knocked on her window and gestured for her to roll it down. Heobserved that defendant's eyes were "bloodshot[,] watery [and] droopy," the vehiclesmelled of alcohol, there was a quantity of unopened beer on the passenger seat and oneopen bottle of beer on the passenger side floor. When asked, defendant advised that shehad consumed two beers at a party. Bornt asked defendant to step out of the vehicle andadministered field sobriety tests. Based on the results of the tests, Bornt arresteddefendant and brought her to the police station. Prior to trial, defendant moved tosuppress certain evidence of her intoxication based on her claim that Bornt did not haveprobable cause to stop and arrest her. County Court denied the motion and the matterproceeded to a jury trial, where defendant was found guilty of driving while intoxicated.Defendant now appeals.
Initially, we find that County Court properly denied defendant's suppression motion.At the pretrial hearing, Bornt recalled the above encounter with defendant, who did nottestify. We reject defendant's claim that she was illegally "seized" once Bornt activatedthe emergency lights. "It is well settled . . . that police officers mayapproach an individual for basic inquiry provided [*2]there is an objective credible reason to do so, notnecessarily indicative of criminality" (People v Story, 81 AD3d 1168, 1168 [2011] [citationsomitted]). Here, Bornt testified that there had been a number of recent burglaries in thearea. That, together with the 911 call reporting a "suspicious vehicle," provided therequisite rationale for Bornt to approach defendant's vehicle that was already stopped onthe side of the road (see People v De Bour, 40 NY2d 210, 220 [1976]; People v Wallgren, 94 AD3d1339, 1340 [2012]; People v Story, 81 AD3d at 1168). The legality of theencounter with defendant's already stopped vehicle is not affected by the fact that Borntactivated his lights first. Rather, by doing so, he properly alerted defendant andpresumably other motorists to his presence on the roadway (see People vWallgren, 94 AD3d at 1341 n 1).[FN*] In our view, Bornt's observations afterhe approached defendant and the results of the field sobriety testing provided probablecause for defendant's subsequent arrest (see People v Fenger, 68 AD3d 1441, 1443 [2009]).
Next, although defendant's general motion to dismiss at the close of the proof failedto preserve her challenge to the legal sufficiency of the evidence (see People v Hawkins, 11NY3d 484, 491 [2008]), we will consider the evidence as part of her claim that thejury verdict was not supported by the weight of the evidence (see People v Sydlar, 106 AD3d1368, 1369 [2013], lv dismissed 21 NY3d 1046 [2013]). Generally, adriving while intoxicated verdict must be supported by evidence that defendant was in anintoxicated condition when he or she operated the vehicle (see Vehicle andTraffic Law § 1192 [3]; People v Colburn, 123 AD3d 1292, 1293 [2014], lvdenied 25 NY3d 950 [2015]). "[A] driver is intoxicated when he or she hasvoluntarily consumed alcohol to the extent that he or she is incapable of employing thephysical and mental abilities which he or she is expected to possess in order to operate avehicle as a reasonable and prudent driver" (People v Carota, 93 AD3d 1072, 1073 [2012] [internalquotation marks, brackets and citation omitted]).
Although defendant contends that there was not sufficient proof that she wasoperating the vehicle while intoxicated, we disagree. Bornt testified that when heapproached defendant, she was sitting in the driver's seat of her car, the keys were in theignition and the head and brake lights were on. For purposes of Vehicle and Traffic Law§ 1192 (3), proof that a driver is behind the wheel with the engine runningis sufficient evidence of "operation" even where, as here, the vehicle is not in motion(see People v Colburn, 123 AD3d at 1293; People v Westcott, 84 AD3d 1510, 1512 [2011]). As todefendant's intoxicated state, Bornt's testimony with regard to his observations,defendant's performance on the field sobriety tests, her statements to Bornt and herrepeated refusal to submit to chemical testing support the jury's determination thatdefendant operated her vehicle in an intoxicated state (see People v Carota, 93AD3d at 1073; People v Gallup, 302 AD2d 681, 683 [2003], lv denied100 NY2d 594 [2003]). In sum, although a different verdict would not have beenunreasonable (see People v Bleakley, 69 NY2d 490, 495 [1987]), we find that thejury reasonably credited Bornt's testimony and the verdict was supported by the weight ofthe evidence (see id.; People v Carota, 93 AD3d at 1075; People v Hamm, 29 AD3d1079, 1080 [2006]; People v Gallup, 302 AD2d at 683).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Having found thatdefendant was not "seized," it is not necessary to consider whether Bornt's determinationto ticket defendant for a violation of Vehicle and Traffic Law § 1201 (a)was objectively reasonable (seePeople v Guthrie, 25 NY3d 130, 134 [2015]).