People v. McCann
| Decision Date | 19 December 2012 |
| Docket Number | No. 2010SU–017684.,2010SU–017684. |
| Citation | 38 Misc.3d 1207,2012 N.Y. Slip Op. 52422,967 N.Y.S.2d 869 |
| Parties | PEOPLE of the State of New York, v. Maegen R. McCANN, Defendant. |
| Court | New York District Court |
OPINION TEXT STARTS HERE
Michaelangelo Matera, Melville, for defendant.
A.D.A. Amy Muller, District Attorney of the County of Suffolk, for for Thomas J. Spota, Central Islip, for the People.
The defendant is charged with driving while intoxicated (V & TL § 1192(3)) and operating a motor vehicle while having in excess of .18 of one per centum of alcohol in her blood (V & TL § 1192(2–a)(a)). Dunaway/Mapp /probable cause and Huntley hearings were held to determine the admissibility at trial of evidence obtained from the defendant. Each side has submitted a memorandum of law and the Court has reviewed same.
Testifying at the hearing on behalf of the People was Suffolk County Police Officer Gary Osso. Officer Osso testified that on April 24, 2010 at approximately 2:22 AM he received a radio call of a motor vehicle accident on Cornell Court North in Smithtown, County of Suffolk, NY. He testified that he was some distance from that scene, but proceeded to respond. During the trip to the scene, Officer Osso observed a male at the corner of Cornell Drive and Jericho Turnpike, which is approximately a mile from the reported accident scene. The male was talking on a cell phone and had a pocketbook in his possession. After speaking with the male, Officer Osso determined that “he was involved with the vehicle” and the Officer transported him to the accident scene. At some point, the male stated to Officer Osso that he was in the subject vehicle and had gotten out to urinate, whereupon the passenger got into the driver's seat and drove off, leaving him at the intersection.
Upon arriving at the accident scene, Officer Osso observed a black Hyundai sedan with extensive damage that had “just collided into a parked vehicle on the east side of the court.” The officer further observed defendant Maegan McCann standing very close to that vehicle “yelling and screaming” and stating that her wrist hurt. Officer Osso stated that he did not recall any other civilians at the scene when he arrived. The officer testified that he spoke with the defendant to determine what had happened and noticed from a distance of approximately two feet away that her breath smelled of an alcoholic beverage, that her eyes were glassy and bloodshot and that she was unsteady on her feet. Officer Osso stated that, because the defendant was complaining of an injury, he placed her in his vehicle and at 2:55 AM transported her to St. Catherine's Hospital, which was approximately five minutes away. Officer Osso did not recall any specific conversation occurring in his vehicle during the transport. After the defendant was triaged at the hospital, at approximately 3:09 AM she made the statement, “I didn't mean to hit the person.” Officer Osso testified that he believed that the statement was made to him, but that it was not in response to a question. The defendant was placed under arrest at the hospital at 3:13 AM. The defendant was read the chemical test refusal warnings and consented to a chemical test at 3:23 AM, writing the word “consent” and affixing her signature on the Alcohol/Drug Influence Report [hereinafter “AIR”]. Blood was drawn at the hospital by a physician's assistant at 4:02 AM, the results of which were a .24 BAC. Officer Osso testified that at 4:11 AM he read the defendant her Miranda rights off the second page of the AIR “exactly how it is written” and that he also read her the waiver of rights questions, with the defendant responding that she understood same and that she wished to talk with the officer. Officer Osso stated that he then completed the bottom portion of the AIR with the defendant's responses to his questions.
At this point in the hearing, the People stated that they had no further questions of Officer Osso and the Court took a brief recess. When the hearing reconvened, the People sought to ask the witness further questions regarding specifically how the Miranda rights were read to the defendant, which request was opposed by the defense. Following argument, this Court granted the People's request, subject to further consideration and post-hearing memoranda of law. Officer Osso retook the stand and was asked to read the Miranda warnings and waiver questions in the same way that he did on the night in question. The officer did so by reading from page two of the AIR, which had previously been admitted into evidence. He testified that the defendant never indicated that she didn't understand the rights or asked the officer to slow down or repeat them and that the defendant signed the bottom portion of the AIR following the questioning recorded therein. On cross-examination Officer Osso testified, inter alia, that when he arrived at the accident scene, Police Officer Althouse was already at the scene and told him that “he found her slipper or sandal under the pedal, the accelerator pedal of the vehicle.”
Pursuant to the provisions of CPL 140.10(1)(b), a police officer may arrest a person without a warrant for “[a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.” The Criminal Procedure Law provides that “ [r]easonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” (CPL 70.10(2)). It is the opinion of this Court that Officer Osso did possess probable cause to arrest the defendant. The Court finds that the facts known to Officer Osso at the time of arrest—his observations regarding the defendant's physical condition and indicia of intoxication, the position and condition of the vehicle, the fact that the defendant was the only civilian present at the scene, standing very close to the vehicle in question and the information provided by Officer Althouse-were collectively of such weight to render it reasonably likely that the defendant had committed the offense of driving while intoxicated. Although the defendant raised an issue as to the element of operation, it must be noted that the proof required to establish probable cause to justify an arrest is not that which is required for conviction ( see People v. Miner, 42 N.Y.2d 937 [1977] ) and that the test for probable cause does not require “certitude” that a crime was committed by the person arrested ( see Veras v. Truth Verification Corp., 87 A.D.2d 381 [1st Dept 1982], affd 57 N.Y.2d 947 [1982];People v. Cunningham, 71 A.D.2d 559 [1st Dept 1979], affd 52 N.Y.2d 927 [1981] ). The Court of Appeals has provided a probable cause standard in alcohol-related driving offenses as one in which, when “viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the 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 [2nd Dept 1982] ), requiring “merely information sufficient to support a reasonable belief that an offense has been or is being committed” (People v. Bigelow, 66 N.Y.2d 417 [1985] ). A determination as to probable cause is to be made only after a consideration of all facts and circumstances and, even though when “[v]iewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found.” ( People v. Bigelow, supra ). Furthermore, it has been held that the element of operation may be proven by circumstantial evidence and that there is no absolute requirement that there be direct eyewitness testimony as to the defendant's operation of the vehicle. ( See People v. Booden, 69 N.Y.2d 185 [1987] ). The facts and circumstances of the case at bar permitted the arresting officer to make a reasonable inference that the defendant had recently moved the vehicle in an intoxicated condition; namely, “that it had been driven by the intoxicated defendant before it came to rest” where the vehicle was found. ( See People v. Saplin, 122 A.D.2d 498 [3rd Dept 1986], lv...
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