Defendant is charged with Reckless Driving (VTL § 1212), Driving While Intoxicated (VTL §1192[3]), and Driving While Ability Impaired by Alcohol (VTL § 1192[1]) arising from an arrest which occurred in front of 132 West Fordham Road in Bronx County (the "location") on August 3, 2013 at approximately 3:30 a.m.

By notice of motion dated December 9, 2013, defendant moved to suppress the following: 1) any and all physical evidence seized from defendant, including observations made by the police and/or the results of any chemical test obtained and 2) and any and all statements made by defendant for which notice was served pursuant to CPL § 710.30.

A combined Huntley/Dunaway/Johnson hearing was held before this court on July 18, 2016. The People called Police Officer ("PO") Roland Veloso as their sole witness. This court finds the testimony of PO Veloso to be credible in all respects. Defendant did not call any witnesses.

PO Veloso has been an officer with the New York City Police Department ("NYPD") for the past 14 years and is currently assigned to Strategic Response Group 2. In October 2009, he received training from the NYPD on identifying the common indicia of intoxication and operating the Portable Breath Test. PO Veloso also became certified as a technician by New York State to operate the Intoxilyzer 5000. Prior to the date of the alleged incident, August 3, 2013, PO Veloso had arrested approximately 50 individuals for driving while intoxicated. He had participated and assisted in the arrests of an additional 80-100 individuals suspected of driving while intoxicated.

On August 3, 2013, PO Veloso and his partner, PO Bourque, were on patrol in a marked police vehicle when he received a cellular telephone call from PO Valdez requesting assistance. PO Veloso could not recall what time he received the call from PO Valdez or how long it took [*2]for him to respond to the location. PO Veloso did not know what time defendant's vehicle was first stopped by PO Valdez.

When PO Veloso arrived at the location at approximately 3:30 a.m., PO Veloso observed defendant standing between his vehicle and PO Valdez's vehicle. PO Valdez told PO Veloso that he had stopped defendant because he had been driving in a reckless manner, to wit: speeding about 70 miles an hour in a 30 mile per hour zone, failing to signal a few lane changes, and cutting off other motorists, thereby putting both defendant and other motorists in danger. Other than what he was told by PO Valdez, PO Veloso had no further details regarding the events which precipitated the stop of defendant's vehicle. As to why defendant was standing outside of his vehicle, PO Valdez explained to PO Veloso that he had suspected defendant of driving under the influence of alcohol based upon the following observations: 1) defendant had bloodshot watery eyes; 2) defendant had a strong odor of alcohol emanating from his breath; and 3) defendant was unsteady on his feet.

PO Veloso also observed defendant to have bloodshot watery eyes. When asked by PO Veloso whether he had anything to drink, defendant stated, "I had one beer." As defendant spoke, PO Veloso detected a strong odor of alcohol emanating from his breath. PO Veloso also noted defendant appeared to be lethargic, slow to respond, and to be swaying slightly behind the vehicle.

Although defendant was not free to leave, at no time during this interaction was defendant in handcuffs or formally under arrest. PO Veloso had his service weapon holstered and his hands were by his side. None of the other officers on the scene had their weapons drawn. Defendant was neither physically restrained nor verbally threatened by PO Veloso or any of the other officers. PO Veloso could not recall how long defendant was detained. After defendant made his statement, PO Veloso concluded that he may have been under the influence alcohol and placed him under arrest. Thereafter, defendant was transported to the 45th Precinct for IDTU.

At the 45th Precinct, defendant took a breath test at approximately 4:25 a.m. and a number of physical coordination tests at approximately 4:45 a.m. The IDTU recording of defendant's breath indicated a blood alcohol content ("BAC") of .075. Defendant failed all of the physical coordination tests conducted. Based upon defendant's BAC and his performance on the physical coordination tests, PO Veloso determined that defendant was intoxicated by alcohol.

"At a suppression hearing, the burden of going forward is on the People to show the legality of police conduct. Once this burden is met, the burden in upon the defendant to prove the illegality of the search or seizure by a preponderance of the evidence." People v. Cyprien, 181 Misc 2d 978, 683 (Crim Ct, NY County 1999), citing People v. Berrios, 28 NY2d 361 (1971).

The stopping of a moving vehicle, however brief, constitutes a seizure within the meaning of the Fourth Amendment. See, People v. Ocasio, 85 NY2d 982 (1995); People v. May, 81 NY2d 725 (1992); People v. Sobotker, 43 NY2d 559 (1978). "[S]o long as some articulable basis exists for that interference, police stops of automobiles are legal only pursuant to routine, nonpretextual traffic checks or when there exists at least a reasonable suspicion that the driver or the occupants of the vehicle have committed, are committing, or are about to commit a crime." People v. Spencer, 84 NY2d 749, 753 (1995). "For a traffic stop to pass [*3]constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance." People v. Banks, 85 NY2d 558, 562 (1995), cert denied 516 U.S. 868 (1995); see also, People v. May, 52 AD3d 147, 151 (1st Dept. 2008).

In order to establish the validity of the initial vehicle stop, the People relied solely upon the testimony of PO Veloso, who arrived to the scene after receiving a telephone call from PO Valdez requesting assistance. Although hearsay evidence is admissible at a suppression hearing to prove a material fact (CPL § 710.60[4]), the issue presented is whether such evidence is sufficient for the People to meet their burden of going forward to prove the legality of the arrest. This court finds in the affirmative.

"A police witness at a suppression hearing may establish probable cause by personal knowledge, as well as by information supplied by fellow officers or private citizens." People v. Edwards, 95 NY2d 486, 491 (2000). Under the fellow officer rule, "[a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability." People v. Lypka, 36 NY2d 210, 213 (1975). "Where the knowledge of the imparting officer is based on his or her first-hand observations, the People are not required to produce that officer at the suppression hearing." People v. Mitchell, 124 AD3d 912, 914 (2d Dept. 2015); see also, People v. Ketcham, 93 NY2d 416 (1999); People v. Petralia, 62 NY2d 416 (1984); People v. Washington, 87 NY2d 945 (1996); People v. Green, 13 AD3d 646 (2d Dept. 2004).

The testimony of PO Veloso established that PO Valdez's first-hand observations of defendant violating VTL §§ 1128, 1163, and 1212 provided him with a lawful basis for stopping defendant's vehicle. People v. Ingle, 36 NY2d 413 (1975). Probable cause to arrest defendant for driving while under the influence of alcohol was established through PO Valdez's observations, as relayed to PO Veloso, coupled with PO Veloso's observations of defendant having bloodshot watery eyes and the strong odor of alcohol emanating from his breath, being unsteady on his feet and slow to respond and defendant's admission that he drank one beer. Therefore, defendant's motion to suppress evidence seized as a result of an unlawful arrest is denied.

Defendant bears the burden of establishing that he was in custody so as to require the administration of Miranda warnings prior to questioning. People v. Brown, 24 Misc 3d 892 (Sup Ct, NY County 2009); People v. Colon, 5 Misc 3d 365 (Sup Ct, NY County 2004). This court finds that defendant has failed to meet his burden by eliciting testimony from PO Veloso to demonstrate that he was in custody at the time he made the statement.

"A temporary roadside detention for the investigation of traffic-related matters, including suspected driving while intoxicated offenses, are generally non-custodial in nature and encompass limited questioning appropriate to such investigations and the administration of performance tests without the necessity of the rendering and waiver of the Miranda warnings." People v. Mackenzie, 9 Misc 3d 129(A), *1 (App Term, 9th & 10th Jud Dists 2005); see also, People v. Gutierrez, 13 AD3d 268 (1st Dept. 2004); People v. Parris, 26 AD3d 393 (2d Dept. 2006); People v. Myers, 1 AD3d 382 (2d Dept. 2003); People v. Hasenflue, 52 AD2d 829 (3d Dept. 1998); People v. Mathis, 136 AD2d 746 (2d Dept. 1988). Here, the question posed by PO Veloso was investigatory in nature and asked after a valid traffic stop. Consequently, defendant's statement that he had one beer was made voluntarily and is admissible at trial. [*4]Therefore, defendant's motion to suppress statement evidence is denied.

Accordingly, defendant's motion to suppress any and all physical evidence seized as well as statement evidence is denied in its entirety.

This constitutes the decision and order of this court.