| People v Fenger |
| 2009 NY Slip Op 09552 [68 AD3d 1441] |
| December 24, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Isaiah Fenger, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Chenango County (Sullivan, J.),rendered January 5, 2009, convicting defendant upon his plea of guilty of the crime of drivingwhile intoxicated.
In July 2007, a road patrol officer with the Chenango County Sheriff's Department wasdispatched on a "welfare complaint" to investigate a vehicle on the side of a roadway. Theofficer testified that when she arrived on the scene, she saw a parked car with defendant inside.She spoke with two firefighters already on the scene, who told her that when they first arrived,the vehicle was still running and defendant was unconscious in the driver's seat. They furtherreported that the vehicle had moved forward when they tried to awaken defendant.
When the officer approached the vehicle, defendant was sitting sideways in the driver's seat,leaning partially out of the driver's door. The officer testified that she noticed a strong odor ofalcohol and observed that defendant had slurred speech, was hard to understand, and had veryglassy eyes. In response to the officer's questions, defendant stated that he had not been drinkingand that there was no alcohol in the vehicle. The officer made a brief search of the vehicle, withdefendant's consent, and found no alcohol.
The officer then asked defendant to get out of the vehicle to perform field sobriety tests. Shetestified that when he first attempted to comply, he fell back into the vehicle, grabbing the doorframe. On the second attempt, he successfully exited the vehicle, and the officer administeredfour field sobriety tests. Defendant failed the first test—the horizontal gaze nystagmustest—but passed the other three. With defendant's permission, the officer thenadministered a portable breathalyzer test, commonly known as the Alco-Sensor test, andobtained a positive result. She read defendant his Miranda rights, placed him in custody,and read him a driving while intoxicated warning. While being transported to the police station,defendant made several incriminating statements.
Defendant was subsequently indicted on three motor vehicle offenses. Following a combinedhearing to address probable cause and other preliminary matters, County Court ruled, amongother things, that defendant's arrest was supported by probable cause. In January 2008, defendantpleaded guilty to a felony driving while intoxicated charge, based on a prior misdemeanorconviction for driving while intoxicated. He was sentenced to five years of probation and a fineof $1,500. In May 2008, he moved to vacate the felony conviction on the ground that thepredicate misdemeanor conviction had been vacated. The court granted the motion and reduceddefendant's conviction to misdemeanor driving while intoxicated and his sentence to three yearsof probation and a $1,000 fine. Defendant now appeals.
Defendant's sole contention is that his arrest was not supported by probable cause. "Probablecause does not require proof sufficient to warrant a conviction beyond a reasonable doubt butmerely information sufficient to support a reasonable belief that an offense has been or is beingcommitted or that evidence of a crime may be found in a certain place" (People vBigelow, 66 NY2d 417, 423 [1985] [citations omitted]). An arrest for driving whileintoxicated is based on probable cause "if the arresting officer can demonstrate reasonablegrounds to believe that the defendant had been driving in violation of Vehicle and Traffic Law§ 1192" (People v Kowalski, 291 AD2d 669, 670 [2002]).
Defendant contends that, because he passed three out of the four field sobriety tests, theofficer had no reasonable justification to believe that he was intoxicated and should haveterminated the encounter before administering the Alco-Sensor test. We disagree. A probablecause determination is based on "the totality of the circumstances" (People v Mojica, 62AD3d 100, 114 [2009], lv denied 12 NY3d 856 [2009]) and "need not always bepremised upon the performance of field sobriety tests or any specific number of such tests"(People v Kowalski, 291 AD2d at 670-671 [citations omitted]). Defendant's success onthree out of the four sobriety tests did not negate the officer's other observations, which includeddefendant's failure of the horizontal gaze nystagmus test, the alcohol odor, defendant's glassyeyes and slurred speech, and his loss of balance when he attempted to get out of the car, as wellas the information communicated to the officer by the firefighters who found defendantunconscious in a running vehicle that moved when they tried to awaken him (see People vMojica, 62 AD3d at 114). The car's location on the roadside and the absence of alcoholcontainers precluded the possibility that defendant had become intoxicated after stopping thevehicle or that he was at the starting point of a journey, allowing the rational inference that hehad been driving the vehicle while intoxicated (see People v Spencer, 289 AD2d 877,879 [2001], lv denied 98 NY2d 655 [2002]; People v Saplin, 122 AD2d 498,498-499 [1986], lv denied 68 NY2d 817 [1986]).[FN*]The officer testified [*2]that defendant's intoxication was"obvious," and that she had no doubt that probable cause existed for his arrest even before sheadministered the Alco-Sensor test, based on her overall investigation, his actions and speech, theodor of alcohol, and his appearance. County Court correctly determined that the officer had"reasonable grounds to believe" that defendant had been driving while intoxicated (People vKowalski, 291 AD2d at 670).
We have examined defendant's other arguments and find them to be without merit.
Mercure, J.P., Spain, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: In any event, the statutoryprohibition applies to operation of the vehicle, "a broader concept" (People v Marriott,37 AD2d 868 [1971]; see People v Cunningham, 274 AD2d 484, 484-485 [2000];Matter of Prudhomme v Hults, 27 AD2d 234, 235-236 [1967]).