The Defendant is charged with driving while impaired, speeding in excess of the maximum allowable speed limit and failing to maintain her lane of travel, in violation of VTL §§ 1192(1), 1180(d) and 1128(a), respectively.

On June 20, 2011, a Mapp, Huntely and Dunaway ^[FN1] hearing was held, pursuant to a stipulation of the parties, to determine whether there was probable cause or a reasonable suspicion to stop the Defendant's vehicle and whether the Defendant's alleged statement was involuntarily made.

At a Mapp/Huntley/Dunaway hearing, where a defendant challenges the legality of a seizure, along with statements and other evidence allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 NY2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses, 32 AD3d 866, 823 N.Y.S.2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 N.Y.S.2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden of establishing the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 N.Y.S.2d 161 (2nd Dept. 1963) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before they may be admitted into evidence on the People's case in chief at trial. People v. Huntely, supra.; People v. Valeruis, 31 NY2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 N.Y.S.2d 625 (1977).

The People attempt to meet their burden through the testimony of Police Officer Samuel Ferrandino. The Defendant did not call any witnesses. After listening to and observing the [*2]demeanor of Officer Ferrandino, the court finds his testimony to be credible and makes the following findings of fact:

Officer Ferrandino has been a police officer for approximately nine and one-half years; two and one-half years with the New York City Police Department and seven and one-half years with the Nassau County Police Department. Officer Ferrandino served approximately four and one-half years in the First Precinct of Nassau County and three years on the county's Highway Patrol, including six months as a member of the Sobriety Enforcement Team, a.k.a. the "Set Unit."Officer Ferrandino received six months of training at the New York City Police Department Academy, as well as six months of training at the Nassau County Police Department Academy. His Nassau County training included a one week course in the recognition of intoxicated persons, the performance of Standardized Field Sobriety Tests ("SFSTs"), obtaining blood/breath alcohol readings and physical appearance observations.

On December 29, 2010 Officer Ferrandino was working a 7:00 p.m. to 5:00 a.m. tour of duty. He was alone, in uniform, in a marked radio motor patrol ("RMP") unit, assigned county wide. As part of the SET Unit Officer Ferrandino was looking for Vehicle and Traffic Law violations to pull vehicles over for DWI enforcement.

At 3:08 a.m. Officer Ferrandino was traveling eastbound on Hempstead Turnpike, in the vicinity of Merrick Avenue. Hempstead Turnpike, in this area, has three lanes of travel heading eastbound separated by dotted lines, with solid lines marking the extreme perimeters of the right and left lanes. There is a cement and grass median separating the eastbound and westbound lanes of travel. On the morning in question the roadway was partially covered with snow and ice.

At this time, Officer Ferrandino observed a Ford Explorer traveling in the middle eastbound lane of Hempstead Turnpike which was drifting out of the middle lane into the right and left lanes, crossing over the dotted lane markings on both sides. Officer Ferrandino could not recall the number of times or the distance the vehicle drifted over the lines, noting only that it was at least once on each side. Officer Ferrandino also followed the Ford Explorer between Merrick Avenue and Coolidge Avenue, a distance of approximately two tenths of a mile, and "paced" the vehicle at a speed of fifty four miles per hour in this forty mile per hour zone. After making these observations, Officer Ferrandino activated his lights and pulled the Ford Explorer over. The officer could not recall if he first pulled the Explorer over to the side of the road and then directed the driver to pull into the parking lot of a Friendly's restaurant or if the Explorer pulled directly into the parking lot.

Once in the parking lot, Officer Ferrandino approached the driver's side of the Ford Explorer, where he observed the Defendant sitting behind the steering wheel and one passenger in the vehicle. Officer Ferrandino asked the Defendant for her license, which she produced without difficulty. At that time he smelled the odor of alcohol coming from the vehicle; and, he asked the Defendant to get out of the vehicle. The Defendant exited he vehicle without difficulty and without any signs of impaired motor condition. At this point Officer Ferrandino continued to smell the odor of alcohol coming from the Defendant and observed the Defendant to have glassy and bloodshot eyes. Without making any promises, threats or using any force or weapons, Officer Ferrandino asked the Defendant if she had been drinking. The Defendant responded, in sum and substance, that she did not have anything to drink, but had been making out with her boyfriend and that was why she smell like alcohol. [*3]

Continuing his investigation, Officer Ferrandino had the Defendant perform SFSTs. The first test performed was the horizontal gaze nystagmus, which revealed six of six possible clues indicative of intoxication. The second test performed was the nine step walk and turn, during which the Defendant missed heel to toe on steps four and seven of her first nine steps, missed steps three and eight of her second nine steps and raised her arms for balance. While Officer Ferrandino stated that overall the Defendant "passed" this test, he also testified that the above mentioned clues indicated possible intoxication. The third test was the one leg stand, during which the Defendant swayed and placed her foot down after only ten seconds. Again Office Ferrandion stated that overall the Defendant "passed" this test, but that the above mentioned clues indicated possible intoxication. Officer Ferrandino also administered a preliminary breath test ("PBT"), which resulted in a reading of .09.

Based upon the manner of operation of her vehicle, the odor of alcohol emanating from the Defendant, the positive clues found on the SFSTs and the confirmation of the presence of alcohol by the PBT, Officer Ferrandino was of the opinion that the Defendant was intoxicated. The Defendant was placed under arrest at 3:35 a.m.

The Defendant argues that there was no legal basis for the stop the her vehicle in the first instance, requiring the suppression of everything that followed. Specifically, the Defendant argues that without any testimony regarding the calibration of the speedometer of Officer Ferrandino's RMP the testimony regarding his pacing of the Defendant's vehicle was inadmissible and cannot support a finding of probable cause for the speeding violation. Additionally, relying on People v. Davis, 58 AD3d 896, 870 N.Y.S.2d 602 (3rd Dept. 2009), the Defendant argues that she drove in her lane of travel as nearly as practicable and that there was no violation of VTL § 1128(a). The Defendant further argues that there was no probable cause for her arrest for driving while intoxicated given Officer Ferrandino's testimony that she passed two of the SFSTs and the absence of any testimony regarding the calibration of the device used for the administration of the PBT.

The People argue that Officer Ferrandino's testimony regarding his pacing of the Defendant's excessive speed and his observation of her crossing the dotted lines separating the moving lanes of travel at least two times was sufficient to establish a reasonable basis for stopping the Defendant's vehicle, notwithstanding the absence of testimony concerning the calibration of the officer's speedometer. The People further argue that the Defendant's manner of driving, her physical appearance, the odor of alcohol, the positive clues for intoxication found on performance of the SFSTs and the results of the PBT provided probable cause for her arrest.

It is well established that "the stopping of an automobile by the police constitutes an impermissible seizure (citations omitted)." People v. Sobotker, 43 NY2d 559, 563, 402 N.Y.S.2d 993, 996 (1978) Such a seizure may nevertheless be upheld "where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation[.]" People v. Robinson, 97 NY2d 341, 741 N.Y.S.2d 147 (2001). See also: Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1767 (1996); People v. Boyd, 68 AD3d 889, 889 N.Y.S.2d 490 (2nd Dept. 2009) lv. den. 14 NY3d 838, 901 N.Y.S.2d 145 (2010)

"Probable cause to arrest 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 [*4]officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense (citations omitted)." People v. Wright, 8 AD3d 304, 778 N.Y.S.2d 59 (2nd Dept.2004); see also: CPL § 70.10; People v. Attebery, 223 AD2d 714, 637 N.Y.S.2d 194 (2nd Dept.1996) From the evidence presented it "need merely appear more probable than not that a crime has taken place and that the one arrested is its perpetrator (citation omitted)." People v. Hill, 146 AD2d 823, 536 N.Y.S.2d 566 (3rd Dept.1989) lv. den. 73 NY2d 1016, 541 N.Y.S.2d 770 (1989); see also: People v. Gingras, 22 Misc 3d 22, 871 N.Y.S.2d 812 (App.Term 9th & 10th Jud. Dists. 2008)

While, the Defendant could not be convicted of speeding based upon Officer Ferrandino's testimony regarding his pacing of the Defendant's vehicle, without additional proper proof of the calibration of his own speedometer or testimony regarding his training to estimate the vehicle's speed, People v. Heyser, 2 NY2d 390, 161 N.Y.S.2d 36 (1957); People v. Berger, 31 Misc 3d 145(A), Slip Copy, 2011 WL 2084377 (App.Term, 9th & 10th Jud. Dists. 2011); People v. Riedinger, 31 Misc 3d 142(A), 2011 WL 1811075 (App.Term 9th & 10th Jud. Dists. 2011), probable cause does not require the same quantum of proof as needed to obtain an conviction. People v. McRay, 51 NY2d 594, 435 N.Y.S.2d 679 (1980); People v. Mercado, 68 NY2d 874, 508 N.Y.S.2d 419 (1986); People v. Rivera, 166 AD2d 678, 561 N.Y.S.2d 268 (2nd Dept.1990) The required quantum of proof does not even rise to the level necessary to establish a prima facie case. Villalobos v. County of Nassau, 15 Misc 3d 135(A), 839 N.Y.S.2d 437 (App.Term 9th & 10th Jud. Dists. 2007); People v. Wright, supra., People v. Hill, supra.; People v. Gingras, supra.

People v. White, 40 AD3d 535, 836 N.Y.S.2d 601 (1st Dept. 2007) lv. den. 9 NY3d 883, 842 N.Y.S.2d 795 (2007) is instructive. The court therein, noting the difference between probable cause and proof beyond a reasonable doubt, upheld the validity of a vehicle stop based upon the officer's testimony that the defendant "appeared" to be speeding and that the officer had to exceed the speed limit in order to catch up to the defendant.

The same conclusion must follow in the matter before this court. Officer Ferrandino clearly testified that he followed the Defendant at a speed of fifty four miles per hour in a forty mile per hour zone. Such testimony is admissible, even in the absence of proof of calibration. People v. Marsellus, 2 NY2d 653, 163 N.Y.S.2d 1 (1957); People v. Heyser, supra. This observation by Officer Ferrandino, standing alone, would not be sufficient to convict the Defendant; however, given the officer's training and experience, it did provided him with a reasonable suspicion that the Defendant was operating her vehicle in excess of the maximum speed limit.

Probable cause similarly existed to stop the Defendant's vehicle for a violation of VTL § 1128(a). The Defendant's reliance on People v. Davis, supra., is misplaced. In that case the defendant's vehicle was observed to "travel partially' on the fog line three to four times,' always in contact with the fog line as it did so." People v. Davis, id. Although the court declined to find that such contact with the fog line did not constitute a violation of VTL § 1128(a), the court "decline[d] to hold that fog line encroachment can never be the basis for a valid traffic stop as a matter of law." id. Moreover, in the matter sub judice, the Defendant did not just come in contact with the markings separating the lanes of travel, but crossed over those markings at least two times, once to the right and once to the left. These circumstances are more akin to People v. Parris, 26 AD3d 393, 809 N.Y.S.2d 176 (2nd Dept.2006) lv. den. 6 NY3d 851, 816 N.Y.S.2d 757 [*5](2006) [vehicle crossed onto shoulder twice in a short distance provided basis for lawful stop]; People v. Irizarry, 282 AD2d 483, 730 N.Y.S.2d 111 (2nd Dept.2001) lv. den. 97 NY2d 705, 739 N.Y.S.2d 106 (2002) [vehicle straddling two moving lanes provided basis for lawful stop]; People v. Riggio, 202 AD2d 609, 609 N.Y.S.2d 257 (2nd Dept.1994) [vehicle weaving between two lanes provided basis for lawful stop].

Based upon all of the foregoing, the court finds that the stop of the Defendant's vehicle was lawful.

It is well established that a temporary roadside detention pursuant to a routine traffic stop is not custodial in nature. People v. Myers, 1 AD3d 382, 766 N.Y.S.2d 581 (2nd Dept. 2003) lv. den. 1 NY3d 631, 777 N.Y.S.2d 30 (2004); People v. Parris, 26 AD3d 393, 809 N.Y.S.2d 176 (2nd Dept. 2006) lv. den. 6 NY3d 851, 816 N.Y.S.2d 757 (2006); People v. Gutierrez, 13 AD3d 268, 787 N.Y.S.2d 266 (1st Dept. 2004) It is equally well established that after stopping a vehicle for an alleged Vehicle and Traffic Law violation a police officer may conduct a reasonable initial interrogation attendant to a roadside investigation. People v. Harris, 186 AD2d 148, 587 N.Y.S.2d 425 (2nd Dept.1992); People v. Kearney, 288 AD2d 398, 733 N.Y.S.2d 460 (2nd Dept. 2001) That is what occurred in this matter. At that point, the Defendant's alleged statement was not the result of a custodial interrogation and was voluntarily made, without there having been any improper conduct on the part of the police.

Thereafter, the odor of alcohol, the Defendant's glassy and bloodshot eyes, her manner of driving, the positive clues observed during the SFST's and the confirmation, by the PBT, of the presence of alcohol on the Defendant's breath provided Officer Ferrandino with probable cause to believe that the Defendant had been driving while intoxicated. See: People v. Ball, 141 AD2d 743, 529 N.Y.S.2d 840 (2nd Dept.1988); People v. Troche, 162 AD2d 483, 556 N.Y.S.2d 403 (2nd Dept.1990); People v. Schmitt, 262 AD2d 588, 692 N.Y.S.2d 656 (2nd Dept.1999)

Accordingly, the Defendant's motion to suppress is denied.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

July 8, 2011

___________________________

Andrew M. Engel

J.D.C.