Appeal from an order of the Justice Court of the Town of Woodbury, Orange County (David Hasin, J.), entered January 23, 2012. The order, after a hearing, granted defendant's motion to suppress statements and physical evidence.

ORDERED that the order is reversed, on the law, defendant's motion to suppress statements and physical evidence is denied, and the matter is remitted to the Justice Court for all further proceedings.

On November 1, 2010, at about 3:55 a.m., having received a police radio report of a person sleeping in a vehicle in a parking lot, state troopers responded to the lot, which abutted a public road, and discovered defendant asleep in the rear seat of her automobile. The engine was running, and the keys were in the ignition. The troopers awakened defendant to determine her condition and immediately detected the strong odor of an alcoholic beverage. Upon exiting her vehicle, defendant, who exhibited several indicia of intoxication and ultimately failed three field sobriety tests, stated to the troopers that, earlier in the evening, she had consumed three glasses of wine at two different locations, the last at a restaurant in Middletown, New York, about 17 miles away, and that while en route to her New Jersey home, she had decided to stop in the parking lot to sleep. The troopers arrested defendant, and, after a chemical test revealed that defendant's [*2]blood alcohol content was .10 of one per centum by weight, defendant was charged in separate accusatory instruments with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), respectively. Defendant moved to suppress statements and physical evidence as the products of an arrest without probable cause. After a hearing, the Justice Court suppressed "any evidence obtained as a result of the arrest," on the ground that the People had failed to prove that defendant, when encountered, had any intent to operate her vehicle.

The proof of defendant's intoxication, coupled with her admissions, sufficed to establish probable cause to arrest defendant for, at the very least, driving while impaired (Vehicle and Traffic Law § 1192 [1]; People v Vandover, 20 NY3d 235, 239 [2012]; People v Cruz, 48 NY2d 419, 427 [1979]; People v Nesbitt, 1 AD3d 889, 890 [2003]; People v McNamara, 269 AD2d 544, 545 [2000]; People v Hilker, 133 AD2d 986, 987-988 [1987]; People v Rich, 25 Misc 3d 126[A], 2009 NY Slip Op 52014[U] [App Term, 9th & 10th Jud Dists 2009]). The operation element of the statute may be proved circumstantially (People v Blake, 5 NY2d 118, 119-120 [1958]; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U] [App Term, 9th & 10th Jud Dists 2012]). Defendant admitted that, after consuming alcoholic beverages, she operated her vehicle over a distance of about 17 miles until she reached the parking lot, and the troopers had abundant evidence of defendant's intoxication. Although it is not known how long defendant was in the parking lot before the troopers first observed her, there is no rational explanation for her presence there other than that she was not at the starting point of her journey. In the absence of any evidence that defendant consumed an alcoholic beverage after she had stopped her vehicle, the only reasonable inference is that defendant's intoxicated state resulted from the consumption of alcoholic beverages prior to her arrival in the lot, and " all inferences other than [recent] simultaneous operation and intoxication,' " at least for probable cause purposes, were effectively excluded (People v Spencer, 289 AD2d 877, 879 [2001], quoting People v Saplin, 122 AD2d 498 [1986]; see People v Fenger, 68 AD3d 1441, 1442 [2009]; People v Salerno, 36 Misc 3d 151[A], 2012 NY Slip Op 51699[U] [App Term, 9th & 10th Jud Dists 2012]; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U]).

Accordingly, the order is reversed, defendant's motion to suppress statements and physical evidence is denied, and the matter is remitted to the Justice Court for all further proceedings.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: July 08, 2013