People v. Anzalone
| Decision Date | 19 August 2021 |
| Docket Number | 2019-1259 S CR |
| Citation | 2021 NY Slip Op 50830 (U) |
| Parties | The People of the State of New York, Respondent, v. Raymond Anzalone, Appellant. |
| Court | New York Supreme Court |
Unpublished Opinion
Suffolk County Legal Aid Society (Anju M. Alexander of counsel), for appellant.
Suffolk County District Attorney (Elena Tomaro and Marion Tang of counsel), for respondent.
PRESENT: TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, TIMOTHY S. DRISCOLL, JJ.
Appeal from a judgment of the District Court of Suffolk County First District (James W. Malone, J.), rendered July 11, 2019. The judgment convicted defendant, upon a jury verdict, of common-law driving while intoxicated, and imposed sentence. The appeal brings up for review an order of that court dated January 3, 2019, after a hearing, denying the branch of defendant's motion seeking to suppress all evidence.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in an accusatory instrument with common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). By order dated January 3, 2019, the District Court denied the branch of defendant's motion seeking to suppress all evidence on the ground that there was no probable cause for his arrest. Following a jury trial defendant was convicted as charged.
Defendant contends that the District Court erred in denying the branch of his motion seeking to suppress the evidence on the ground that his arrest was unlawful. Probable cause for an arrest requires "information sufficient to support a reasonable belief that an offense has been or is being committed" (People v Bigelow, 66 N.Y.2d 417, 423 [1985]; see People v Kamenev, 179 A.D.3d 837, 838 [2020]). In determining the propriety of an arrest for violating Vehicle and Traffic Law § 1192, "[t]he only valid inquiry... is whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the [arresting] officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor" (People v Farrell, 89 A.D.2d 987, 988 [1982]; accord People v Hillman, 71 Misc.3d 127 [A], 2021 NY Slip Op 50233[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). Consequently, (People v Hilker, 133 A.D.2d 986, 987-988 [1987]; accord People v Freeman, 37 Misc.3d 142 [A], 2012 NY Slip Op 52281[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v Gingras, 22 Misc.3d 22, 23 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; see People v Andrews, 30 Misc.3d 133 [A], 2010 NY Slip Op 52357[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]).
An arrest for violating Vehicle and Traffic Law § 1192 (1) "is authorized upon probable cause that a defendant, by voluntarily consuming alcohol, has actually impaired, to any extent, his or her ability to operate a vehicle as a reasonable and prudent driver" (People v Freeman, 37 Misc.3d 142 [A], 2012 NY Slip Op 52281[U], at *2; see People v Cruz, 48 N.Y.2d 419, 427 [1979]). "The quantum of proof necessary to support an arrest for driving while impaired is far less rigorous than that required for driving while intoxicated" (People v Freeman, 37 Misc.3d 142 [A], 2012 NY Slip Op 52281[U], at *2 [internal quotation marks omitted]; see People v Maher, 52 Misc.3d 136 [A], 2016 NY Slip Op 51043[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).
Here, at the probable cause hearing, the arresting officer testified that he responded to an accident and was informed, upon arrival, that defendant ran a red light and crashed into another vehicle which was proceeding through a green light. When asked by the officer if he had consumed alcohol, defendant admitted that he "had a maximum of five beers." Defendant exhibited classic signs of intoxication-having bloodshot, glassy eyes, an odor of alcohol on his breath, slurred speech and unsteady gait. Defendant failed the horizontal gaze nystagmus field sobriety test administered at the scene of the accident, refused to submit to the walk-and-turn test and the one-leg stand test, and became "loud" and aggressive as the officer attempted to administer the walk-and-turn test. Defendant subsequently submitted to a prescreen breath test, which yielded a positive result for the presence of alcohol. The District Court expressly found the officer's testimony to be credible-a finding that must be accorded deference unless clearly unsupported by the record (see People v Bookman, 131 A.D.3d 1258, 1260 [2015], affd 28 N.Y.3d 967 [2016]; People v Hillman, 71 Misc.3d 127 [A], 2021 NY Slip Op 50233[U]; People v Carbon, 68 Misc.3d 129 [A], 2020 NY Slip Op 50950[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020])-and there is no reason on this record to disturb that credibility determination. Therefore, the arresting officer possessed probable cause to arrest defendant for a violation of Vehicle and Traffic Law § 1192 ().
The District Court providently exercised its discretion in denying defendant's motion for a mistrial based upon a prosecution witness's fleeting testimony indicating that defense counsel had "tricked" her. "The decision whether to grant a mistrial lies within the sound discretion of the trial court, which is in the best position to determine whether a mistrial is necessary to protect the defendant's right to a fair trial" (People v Morris, 189 A.D.3d 1077, 1079 [2020]; see People v Ortiz, 54 N.Y.2d 288, 292 [1981]; People v Diaz, 189 A.D.3d 1063, 1066 [2020]). "In balancing the proper considerations, a court should consider 'the availability of less drastic means of alleviating whatever prejudice may have resulted' from the error" (People v Morris, 189 A.D.3d at 1079, quoting People v Young, 48 N.Y.2d 995, 996 [1980]). In response to defendant's motion, the court struck the objectionable testimony from the record, as requested by defense counsel, and issued a curative instruction that the jury must disregard that testimony and could not consider it "at all," which the jury is presumed to have followed (see People v Stone, 29 N.Y.3d 166, 171 [2017]; People v Baker, 14 N.Y.3d 266, 274 [2010]; People v Martin, 141 A.D.3d 734, 736 [2016]), thereby eliminating any prejudice associated with the jury's exposure to the testimony (see People v Stone, 29 N.Y.3d at 171; People v Diaz, 189 A.D.3d at 1066; People v Mejia, 160 A.D.3d 899, 900 [2018]). We note that defendant neither objected to the instruction given nor requested any further relief, and, thus, the curative instruction "must be deemed to have corrected [any] error to... defendant's satisfaction" (People v Heide, 84 N.Y.2d 943, 944 [1994]; see People v Anselmo, 164 A.D.3d 1462, 1463 [2018]; People v Lacey, 99 A.D.3d 944, 945 [2012]).
Defendant further contends that the conviction is not supported by legally sufficient evidence because the People failed to establish that he was intoxicated. A person is guilty of driving while intoxicated when he or she "has voluntarily consumed alcohol to the extent that he [or she] is incapable of employing the physical and mental abilities which he [or she] is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 N.Y.2d 419, 428 [1979]; see e.g. People v Velasquez, 65 A.D.3d 1266, 1266 [2009]). Here, the People presented evidence that defendant ran a red light and crashed into another vehicle at an intersection. It appeared to a civilian witness that defendant did not honk his horn and did not make any effort to stop, slow down or swerve his vehicle to avoid the collision. The arresting officer testified that defendant exhibited classic signs of...
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