Appeal from an order of the District Court of Nassau County, First District (Vito M. DeStefano, J.), dated September 30, 2005. The order denied defendant's motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

In this action based on false arrest and malicious prosecution (see Colon v City of New York, 60 NY2d 78 [1983]; Marrero v City of New York, 33 AD3d 556 [2006]), defendant moved for summary judgment on the basis of the following undisputed facts. Shortly after 5:00 A.M. on May 27, 2001, the automobile plaintiff operated was struck from behind. One passenger died at the scene and others suffered various injuries. Plaintiff and the other injured persons were transported to Winthrop University Hospital where, about an hour after arrival, plaintiff was interviewed by the arresting officer. The officer noticed an odor of an alcoholic beverage on plaintiff's breath and that his eyes were bloodshot and glassy. The officer asked defendant if he had been drinking and defendant admitted that he consumed three beers between midnight and 4:00 A.M. The officer arrested defendant for violating section 1192 of the Vehicle and Traffic Law. Defendant consented to a test of the alcohol content of his blood and a sample was taken at about 7:30 A.M. At an unknown time thereafter, a hospital employee informed the arresting officer that a test revealed a blood alcohol content of .04". The remainder of the blood sample was preserved in a "kit" for testing by the Nassau County Medical Examiner. Defendant was transported to Police Headquarters, held overnight and released the following day after arraignment. At a subsequent court appearance, the People, citing "negative" results of the test by the Medical Examiner, dismissed the charge, and this suit ensued. On these facts, defendant moved for summary judgment arguing that, as a [*2]matter of law, the officer had probable cause to arrest plaintiff. Defendant established the facts via the arresting officer's sworn supporting deposition. In his opposing papers, plaintiff submitted his examination before trial testimony wherein he admitted the essential facts and the examination before trial of the arresting officer which was consistent with his supporting deposition.

The existence of probable cause constitutes a complete defense to claims of false arrest and malicious prosecution (Marrero v City of New York, 33 AD3d 556, 557 [2006]; Brown v Sears Roebuck & Co., 297 AD2d 205, 211 [2002]; see also Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]). "The presence or absence of probable cause . . . can be decided as a matter of law where the facts leading up to an arrest and the inferences to be drawn therefrom are not in dispute" (Orminski v Village of Lake Placid, 268 AD2d 780, 781 [2000]; see Parkin v Cornell Univ., 78 NY2d 523, 529 [1991]; Lundgren v Margini, 30 AD3d 476, 477 [2006]; Restey v Higgins, 252 AD2d 954 [1998]; Malone v City of Glens Falls, 251 AD2d 838 [1998]). Probable cause, a mixed question of law and fact (People v Gonzalez, 99 NY2d 76, 83 [2002]),
"requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense (see People v Bigelow, 66 NY2d 417, 423 [1985] . . . ). A finding of probable cause does not, however, require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case . . . Rather, it need merely appear more probable than not that a crime has taken place and that the one arrested is its perpetrator' (People v Hill, 146 AD2d 823, 824 [1989] . . .). Moreover, in determining whether a police office has probable cause for an arrest, the emphasis should not be narrowly focused on . . . any . . . single factor, but on an evaluation of the totality of circumstances, which takes into account "the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents"'
(People v Bothwell, 261 AD2d 232, 234 [1999] . . .)" (People v Wright, 8 AD3d 304, 306-307 [2004] [citations omitted]; see also CPL 140.10 [1] [b]; People v Maldonado, 86 NY2d 631, 635 [1995]).

In making the determination to arrest, the officer is not obligated to eliminate all possible innocent explanations for incriminating facts (see People v Mercado, 68 NY2d 874, 877 [1986]; People v Daye, 194 AD2d 339, 340 [1993]). Moreover, "[a] party may act with probable cause even though mistaken . . . if the party acted reasonably under the circumstances in good faith" (People v Colon, 60 NY2d 78, 82 [1983]). In this case, probable cause was established by operation and the indicia of the effects of alcohol consumption such as the odor of an alcoholic beverage on the breath and glassy and/or bloodshot eyes, coupled with an admission as to alcohol consumption and an accident, the cause of which was unknown to the arresting officer [*3](see e.g. People v Bagley, 211 AD2d 882, 883 [1995]; People v Troche, 162 AD2d 483 [1990]; People v McCarthy, 135 AD2d 1113, 1114 [1987]; People v Hilker, 133 AD2d 986, 987 [1987]; People v Blajeski, 125 AD2d 582 [1986]; People v Rollins, 118 AD2d 949 [1986]; People v Grodecki, 2001 NY Slip Op 40537[U] [App Term, 9th & 10th Jud Dists]).

We do not agree that the officer's knowledge of the hospital test results or defendant's version of the cause of the accident so materially undermines the probable cause determination as to require a different result. Defendant's admitted alcohol consumption ended at 4:00 A.M.; the accident occurred a few minutes after 5:00 A.M., and the blood was drawn at 7:30 A.M. The officer was informed that the hospital test demonstrated a blood alcohol content of .04", which is only slightly below the minimum level to be "relevant" evidence of impairment by alcohol (Vehicle and Traffic Law § 1192 [1]; § 1195 [2] [b]). Thus, the officer had reason to conclude that alcohol remained in plaintiff's blood three and one-half hours after his last admitted drink. It was also reasonable for the officer to suspect that if, as plaintiff admitted, he had 3 beers and operated his automobile less than an hour after consuming the last beer, until the accident shortly after 5:00 A.M., and still had a .04" blood alcohol content after 7:30 A.M., either that plaintiff was at least impaired by alcohol at 5:00 A.M., that he consumed more alcohol in the early hours than he admitted, or that he consumed more alcohol after leaving the club (see generally People v Mertz, 68 NY2d 136 [1986]). The hospital test result, if anything, was thus probative of probable cause.

McCabe, J.P., Tanenbaum and Lippman, JJ., concur.
Decision Date: April 9, 2007