People v. Phraner
| Decision Date | 22 August 1991 |
| Citation | 574 N.Y.S.2d 147,151 Misc.2d 961 |
| Parties | The PEOPLE of the State of New York v. Peter PHRANER, Defendant. |
| Court | New York District Court |
Clayton & Mayer by Peter H. Mayer, Hauppauge, for defendant Peter J. Phraner.
James M. Catterson, Jr., Dist. Atty., Court of Suffolk by Glen Vickers, Asst. Dist. Atty., Hauppauge, for People.
The defendant is charged with driving while intoxicated (Vehicle and Traffic Law § 1192(2), (3)) and has moved to suppress the results of a chemical test of his breath. A pre-trial hearing was held to determine whether there existed probable cause for the defendant's arrest and whether, in the circumstances of the within case, the results of the chemical test are admissible herein.
Patrolman Thomas Kenneally testified on direct examination that he was operating a patrol car on April 29, 1989 at approximately 4:00 AM, southbound on Laurel Road, Town of Huntington, State of New York. As his patrol car approached a rise in the road, the officer noticed the defendant's vehicle traveling in the opposite direction, coming over the crest of a hill. The officer estimated the speed of the defendant's vehicle to be 50 miles per hour on a road posted for 30 miles per hour. Officer Kenneally testified that his initial estimate was verified when he glanced at the radar monitor in his vehicle, which monitor recorded the defendant's speed as 50 miles per hour. The officer further testified that there was absolutely no other traffic on the road when the defendant's vehicle entered the radar's "field of vision." The officer then made a U-turn and followed the defendant for a short distance until the defendant pulled into a parking lot. The defendant shut off his engine and exited his vehicle, as did the officer. Officer Kenneally then testified that he observed the defendant stagger as he approached and, when he asked the defendant to produce a license and registration, he smelled alcohol on the defendant's breath. Additionally, the police officer noticed that the defendant's eyes were glassy and bloodshot and that, when the defendant again staggered, he was arrested for driving while intoxicated and taken to the "Stop-DWI" trailer. Officer Kenneally testified that the defendant was arrested at 4:30 AM and arrived at the trailer for processing at 4:41 AM.
The defendant was read his rights concerning submitting to a breath test, followed by his Miranda warnings. The officer testified that the defendant agreed to answer questions, stated that he did not want an attorney and proceeded to admit that he was driving after drinking between six and seven beers at the "Northside" between the hours of 8:00 PM and 4:00 AM. On cross-examination, the witness testified that he did not remember the defendant wanting a lawyer, but that at 4:47 AM or 4:57 AM the defendant asked to make a telephone call. The officer gave the defendant a telephone directory and, although he does not know whom the defendant called or the substance of the conversation, he remembers the defendant speaking to someone, then taking the Intoxilyzer test at 5:05 AM. The defendant subsequently made an additional telephone call at 5:17 AM, after the test was concluded.
The defendant testified that, when initially asked if he wanted to submit to the breath test, he told the police officer that he wanted to call an attorney first. The defendant called his attorney and spoke to the attorney's wife, who asked him to hold on while she got her husband. The defendant testified that, while waiting for the attorney to get on the telephone, he was told by the police officer that he did not need an attorney, so the defendant hung up without speaking to him. The defendant testified that he hung up "because the cop said I did not need a lawyer." It is alleged that this statement was made by the officer several times. After hearing and evaluating the evidence received herein, it is clear to this Court that the police officer had reasonable cause to believe that the defendant had committed the offense of speeding in his presence. The officer possessed grounds for following and approaching the defendant's vehicle. (See People v. Sobotker, 43 N.Y.2d 559, 402 N.Y.S.2d 993, 373 N.E.2d 1218; see also People v. Chilton, 69 N.Y.2d 928, 516 N.Y.S.2d 633, 509 N.E.2d 327). Upon observing the defendant exhibit the classic indications of intoxication--staggered gait, bloodshot and glassy eyes and the smell of alcohol on the breath--Officer Kenneally made an arrest for driving while intoxicated. In determining the issue of probable cause for this arrest, the Court must inquire "whether, 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." (See People v. Farrell, 89 A.D.2d 987, 988, 454 N.Y.S.2d 306). This Court finds that the above-described circumstances provided probable cause for the defendant's arrest.
The remaining issue raised by the defendant at...
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