Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Term, New York, 9th and 10th Judicial Districts.Mar 8, 2012
950 N.Y.S.2d 725 (N.Y. App. Div. 2012)

No. 2010–2880SCR.


The PEOPLE of the State of New York, Respondent, v. Robert TURNER, Appellant.


Appeal from a judgment of the District Court of Suffolk County, First District (Stephen Lotto, J.), rendered October 13, 2010. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated.

ORDERED that the judgment of conviction is affirmed.

The evidence at both a pretrial suppression hearing and a jury trial established that the police had received a 911 call by a nontestifying informant to the effect that a light-colored minivan was being operated on the Long Island Expressway in a fashion that suggested that the driver was intoxicated, and that the van had come to a stop beside the expressway between specified exits. An investigating officer discovered defendant's vehicle parked at the reported location, with defendant sleeping in the driver's seat. Although the key was in the ignition, the engine and vehicle lights were turned off. The officer awakened defendant, with difficulty, and, after an investigation in the course of which defendant failed field sobriety tests, defendant was arrested. After defendant refused to submit to a blood alcohol test, the People charged him with driving while intoxicated (Vehicle and Traffic Law § 1192[3] ). Following the probable cause hearing, the District Court denied defendant's motion to suppress evidence and, following a jury trial, defendant was convicted of the offense. On appeal, defendant challenges the sufficiency of the proof of his operation of the vehicle with respect both to the probable cause hearing and the trial. Defendant further contends that the admission into evidence, at trial, of the contents of the 911 call was improper, on both constitutional and hearsay grounds.

The District Court properly concluded that the police had probable cause to arrest defendant. The element of operation can be proven by circumstantial evidence, that is, without the necessity of eyewitness testimony that defendant operated his or her vehicle (Gerstenzang, Handling the DWI Case in New York § 2:10 [2010]; e.g. People v. Thompson, 217 A.D.2d 929, 930 [1995] ). Here, the arresting officer encountered defendant under circumstances that are amenable to no other rational explanation than that defendant had driven his vehicle to the location where he had parked, and that he had parked in that location at a time sufficiently proximate to when he was approached by the officer to permit the inference that the degree of intoxication defendant exhibited in the course of the investigation pertained to that operation. Further, defendant admitted to the arresting officer that he was en route to his brother's home in upstate New York. Such circumstances permit the inference that the vehicle “had been driven by the intoxicated defendant before it came to rest” (People v. Saplin, 122 A.D.2d 498, 499 [1986];see People v. Fenger, 68 AD3d 1441, 1443 [2009] ) and “point logically to the defendant's operation of the automobile while intoxicated, even though there is no direct proof that he drove [his vehicle]” (People v. Blake, 5 N.Y.2d 118, 120 [1958];see also People v. Collins, 70 A.D.2d 986, 987 [1979] ).

Defendant's objection to the admission at trial of the contents of the 911 calls is not preserved for appellate review, as defendant failed to interpose any objection to the evidence ( seeCPL 470.05[2]; People v. Jackson, 70 AD3d 858, 859 [2010];People v. Mitchell, 35 AD3d 507 [2006];see also People v. Kello, 96 N.Y.2d 740, 743 [2001] ). In any event, evidence of the calls was admissible pursuant to the present sense impression exception to the hearsay rule (People v. Vasquez, 88 N.Y.2d 561, 574 [1996];Seaberg v. North Shore Lincoln–Mercury, Inc., 85 AD3d 1148, 1150 [2011] ), and, with respect to the constitutional claim, 911 calls are generally considered nontestimonial in nature, raising no Confrontation Clause issues (Davis v. Washington, 547 U.S. 813 [2006];see also People v. Rawlins, 10 NY3d 136, 156 [2008];People v. Clay, 88 AD3d 14 [2011];People v. Phillips, 68 AD3d 1137 [2009];People v. Conyers, 33 AD3d 929, 930 [2006] ). The caller's objective purpose was to alert the police to a dangerous situation—a possibly intoxicated driver—and to provide identifying information sufficient to allow the police to locate the car. Consequently, the evidence of the 911 calls was admissible to explain the nature of the public emergency and the circumstances under which the police had approached defendant's vehicle. There is no indication that the statements were evoked to gather information in relation to a future prosecution. As a result, there was no error.

Defendant's principal contention with respect to legal sufficiency is that the evidence adduced at trial was insufficient to prove, beyond a reasonable doubt, that he had operated his vehicle in an intoxicated condition. Viewed in the light most favorable to the People, the proof was legally sufficient to establish that defendant had operated his vehicle while in an intoxicated condition. Further, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 NY3d 342 [2007] ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear their testimony and assess their credibility ( see People v. Mateo, 2 NY3d 383, 410 [2004];People v. Bleakley, 69 N.Y.2d 490 [1987] ). Upon a review of the record, we find that the conviction was not against the weight of the evidence.

Accordingly, the judgment of conviction is affirmed.