The People appeal from (1) an order of the Supreme Court, Bronx County (Richard Lee Price, J.), entered March 3, 2005, which granted defendant's motion to suppress statements she made to the police and identification testimony, and (2) an order (same court and Judge), entered June 22, 2005, which upon reargument, adhered to the prior decision.

PER CURIAM:

Orders (Richard Lee Price, J.) entered March 3, 2005 and June 22, 2005, reversed, on the law, suppression motion denied, the criminal complaint reinstated, and matter remanded for further proceedings.

Probable cause for defendant's arrest was established by the totality of the chain of information which linked defendant to the crime (see People v Bigelow, 66 NY2d 417, 423 [1985]), including information from the complainant, who was at the scene and identified defendant as the driver of the car, and the officer's own observations of the scene and of defendant, who was unstable and had watery eyes, slurred speech and the odor of alcohol on her breath (see People v Moskal, 262 AD2d 986 [1999]). The complainant's initial identification of defendant, who was inside a diner 5 to 7 feet from the incident, was not police-arranged and is not subject to suppression. Even assuming, arguendo, that the complainant's second identification of defendant, only minutes later, could be considered a police-arranged showup, it was confirmatory, prompt, and on-the-scene, and was not unduly suggestive (see People v Boutte, 304 AD2d 307 [2003], lv denied 100 NY2d 379 [2003]). Finally, since defendant's statements to the police were in response to clarifying questions made in a non-custodial setting, they were admissible in the absence of Miranda warnings (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]).
I concurI concur [*2]
Phyllis Gangel-Jacob, J., dissenting.

I respectfully dissent and would vote to affirm for the reasons stated by the motion court. The evidence elicited at the hearing fully supports the suppression court's determination that the arresting officer's testimony, aptly characterized by the court as "very vague and inconclusive," was insufficient to establish probable cause to arrest defendant for driving while intoxicated. Nor is there any basis to disturb the court's conclusion that the complainant's identification of defendant at the scene was not unduly suggestive.

This constitutes the decision and order of the court.
Decision Date: August 10, 2006