Appeal from an order of the Justice Court of the Town of New Windsor, Orange County (Donald J. Suttlehan, J.), entered December 12, 2008. The order, insofar as appealed from, granted so much of an omnibus motion by defendant as sought to suppress evidence on the ground that it was the fruit of an arrest without probable cause.

ORDERED that the order, insofar as appealed from, is reversed, on the law, the branch of defendant's motion which sought to suppress evidence on the ground that it was the fruit of an arrest without probable cause is denied, and the matter is remitted to the Justice Court for determination of any remaining branches of defendant's omnibus motion and for all further proceedings.

Defendant was stopped for the alleged traffic infractions of driving across a hazard marking (Vehicle and Traffic Law § 1128 [d]) and moving from a lane unsafely (Vehicle and Traffic Law § 1128 [a]). He was subsequently arrested and charged with those infractions, as well as other offenses, including driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). He moved to, among other things, suppress evidence obtained as a result of his stop and arrest. After a Mapp/Dunaway hearing at which the arresting trooper was the sole witness, the Justice Court issued a decision in which it found that the People had established an adequate predicate for the stop of defendant's vehicle (a finding not before us on this appeal), but had failed to establish probable cause for defendant's arrest after the stop (the finding before us). As a result of its finding of a lack of probable cause, the Justice Court suppressed certain evidence.

Although the Justice Court did not "set forth on the record its findings of fact . . . [or] the reasons for its determination" (CPL 710.60 [6]), we are able to infer from the hearing testimony, colloquy, and closing arguments that it credited the trooper's testimony (see generally People v [*2]Mitchell, 290 AD2d 518 [2002]; People v Gingras, 22 Misc 3d 22, 23 [App Term, 9th & 10th Jud Dists 2008]) but granted suppression because the trooper testified to the effect that he, personally, had formed no more than the opinion that defendant "m[ight] be under the influence of alcohol" before he effected defendant's arrest. The relevant question, however, was not what the trooper's subjective opinion was at the time of the arrest (see People v Peters, 136 AD2d 750 [1988]), but, rather, whether the circumstances preceding the arrest, "viewed objectively" (People v Nesbitt, 1 AD3d 889, 890 [2003] [internal quotation marks and citations omitted]; see People v Peters, 136 AD2d 750), established probable cause for the arrest. In other words, the pertinent inquiry was not whether the trooper believed that he had probable cause to arrest defendant, but, rather, whether a reasonable person with the trooper's expertise, and in the trooper's position, would have had probable cause for the arrest (see e.g. People v Gingras, 22 Misc 3d at 23).

The trooper testified that defendant initially crossed over hazard markings and drove his vehicle into the opposing traffic lane. After stopping defendant, the trooper observed that defendant was able to emerge from his vehicle without difficulty, but the trooper also noted that defendant had slurred speech and that an extremely strong odor of alcohol emanated from his breath and his vehicle. Defendant admitted having drunk one glass of wine. He displayed eye nystagmus "prior to 45 degrees and also at maximum deviation" and was unable to complete two additional field sobriety tests successfully. Regardless of what reservations the trooper may have had about the existence of probable cause, the trooper's testimony established that probable cause existed to arrest defendant for driving while intoxicated, or, at the very least, for driving while ability impaired (Vehicle and Traffic Law § 1192 [1]; see People v Gingras, 22 Misc 3d 22). The arrest was thus lawful (see Gingras, 22 Misc 3d 22).

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant's motion which sought to suppress evidence on the ground that it was the fruit of an arrest without probable cause is denied, and the matter is remitted to the Justice Court for determination of any remaining branches of defendant's omnibus motion and for all further proceedings.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: January 27, 2010