Appeal from a judgment of the District Court of Nassau County, First District (Robert A. Bruno, J., at trial and sentencing), rendered March 19, 2009. The judgment convicted defendant, upon a jury verdict, of aggravated driving while intoxicated per se. The appeal from the judgment of conviction brings up for review so much of an order (Martin Massell, J.) as denied defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b), and so much of an order (William J. O'Brien, J.) as denied the branch of defendant's motion to suppress the results of a breathalyzer test and certain statements.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with, among other offenses, aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a]). He filed an omnibus motion seeking, among other things, to suppress his breathalyzer results, observations made by the police, and statements he had made. The People opposed the motion, which the District Court granted to the extent of ordering a hearing. Thereafter, defendant moved to dismiss the accusatory instrument on the ground that he was denied his statutory right to a speedy trial (CPL 30.30 [1] [b]). The District Court granted defendant's motion to dismiss to the extent that it ordered a hearing limited to the issue of the excludability of the time period from May 12 to June 5, 2007. In the order granting the hearing, the District Court held that the time period from March 6 to April 11, 2008 was not chargeable to the People, since they had established that this delay was due to an exceptional circumstance created by the medical unavailability of the arresting officer, a material witness. Following the hearing, the District Court denied defendant's motion to dismiss, finding that the period in question was excludable, and adjourned the matter for the suppression hearing.

At the suppression hearing, the sole witness was the arresting officer, who testified that he had initially observed defendant at 2:15 A.M. while on patrol on a dark, rainy night. He observed defendant make a left turn and then a quick right turn into a parking lot. The officer described the area as a large parking lot, with a medical building, which was closed at night. He testified that after defendant's vehicle had stopped, he had pulled his vehicle to the side of defendant's, displayed his lights and exited the patrol car. Immediately upon walking up to the driver's side window and before speaking to defendant, he smelled a "very, very strong odor of [*2]alcohol" coming from defendant. Defendant's eyes were red, bloodshot and glassy, and defendant's speech was slurred. In light of his observations, he asked defendant to exit the vehicle to perform several standard field sobriety tests. After defendant failed all three of the tests, defendant was charged with driving while intoxicated and placed under arrest. At the conclusion of the hearing, the District Court determined that the police officer's initial approach to defendant was proper and that there was probable cause for the arrest, and denied defendant's suppression motion. Subsequently, following a jury trial, defendant was convicted of aggravated driving while intoxicated per se.

On appeal, defendant contends that the time periods of May 12 to June 5, 2007 and March 6 to April 11, 2008 should have been chargeable to the People. However, defendant's particular arguments with respect to these time periods were never brought to the attention of the District Court and are unpreserved for appellate review (see People v Luperon, 85 NY2d 71 [1995]; People v Robinson, 47 AD3d 847 [2008]; People v Cain, 24 AD3d 889 [2005]). In any event, the contentions are without merit. The period between May 12 and June 5, 2007 was properly excluded as an adjournment made at the request or with the consent of defendant (see CPL 30.30 [4] [b]; People v Liotta, 79 NY2d 841, 843 [1992]; People v Hamilton, 187 AD2d 451, 452 [1992]; People v Martucci, 22 Misc 3d 137[A], 2009 NY Slip Op 50336[U] [App Term, 9th & 10th Jud Dists 2009]). The time from March 6 to April 11, 2008 was also not chargeable to the People, since this delay was attributable to the exceptional circumstance created by the medical unavailability of a material witness, and the People exercised due diligence in bringing the case to trial upon the witness's availability (see CPL 30.30 [4] [g]; People v Zirpola, 57 NY2d 706, 708 [1982]; People v Womack, 90 NY2d 974 [1997]; People v Alcequier, 15 AD3d 162, 163 [2005]; People v Lee, 217 AD2d 637, 638 [1995]). Consequently, the denial of defendant's motion to dismiss pursuant to CPL 30.30 (1) (b) was proper.

The motion to suppress was also properly denied. Here, the initial encounter was not a stop, as defendant's car was stationary prior to, and for a reason independent of, the arresting officer's approach (see People v Ocasio, 85 NY2d 982 [1995]; People v Thomas, 19 AD3d 32, 36-37 [2005]). An approach to an occupied parked car by police officers is a minimal intrusion that requires only an objective, credible reason for the officer's request. The lateness of the hour, the wet conditions of the road and the relative isolation of the parking lot, provided such an articulable basis for the arresting officer to inquire whether defendant needed assistance (see People v De Bour, 40 NY2d 210 [1976]; People v Smith, 2002 NY Slip Op 40418[U] [App Term, 9th & 10th Jud Dists 2002]; see also People v Harrison, 57 NY2d 470, 475 [1982]). In this case, where the arresting officer did not approach defendant with his gun drawn or subject him to any verbal command or physical restraint, the mere activation of the patrol car lights, which occurred after defendant's vehicle was stationary, without more, did not elevate the initial encounter to a stop requiring reasonable suspicion (see People v Ocasio, 85 NY2d at 984; People v Bora, 83 NY2d 531, 535 [1994]; People v Smith, 2002 NY Slip Op 40418[U]; cf. People v Sobotker, 43 NY2d 559 [1978]; People v Yendo, 30 Misc 3d 135[A], 2011 NY Slip Op 50140[U] [App Term, 9th & 10th Jud Dists 2011]). However, once the officer smelled the odor of alcohol, he had reasonable suspicion to believe that defendant had committed the offense of driving while intoxicated, or at least of driving while ability impaired, and was authorized to direct defendant to exit the vehicle and perform field sobriety tests (see People v Smith, 2002 NY [*3]Slip Op 40418[U]). Based on defendant's failure to perform the tests, the arresting officer had probable cause to arrest defendant for driving while intoxicated. Thus, the arrest was lawful, and defendant's motion to suppress was properly denied.

Accordingly, the judgment of conviction is affirmed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: July 07, 2011