Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, February 28, 2019

Timothy D. Sini, District Attorney (Rosalind C. Gray of counsel), for appellant.

Steven M. Politi for respondent.

Ordered that the order is reversed, on the law, the branches of defendant's omnibus motion seeking to suppress statements, blood alcohol test results, and observations of defendant's physical condition on the ground that defendant's arrest had been without probable cause are denied, and the matter is remitted to the District Court for a determination of the branches of defendant's omnibus motion seeking to suppress evidence on other grounds, in accordance with this decision and order.

The People charged defendant, in simplified traffic informations, with various Vehicle and Traffic Law violations; in an information, with aggravated driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2-a] [a]); and, in separate superseding informations, with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), alleging {**64 Misc 3d at 79}that, on February 3, 2014, while operating his motor vehicle with a blood alcohol content of .42 of one per centum by weight, defendant had crossed double yellow lines separating his lane of travel from oncoming traffic and collided with another vehicle head-on. Defendant was removed from the accident scene to a hospital for emergency room treatment, in the course of which he exhibited several indicia of intoxication and admitted to an investigating officer that he had "crashed [his] car" and that he had consumed "enough, oh enough" vodka.

Defendant made an omnibus motion seeking to, among other things, suppress statements, blood alcohol test results and observations of his physical condition on the ground, among others, [*2]that there was a lack of probable cause to arrest him. At a combined Mapp/Dunaway/Huntley hearing, a police officer testified that, at the scene of the head-on collision, the driver of the other vehicle involved in the collision had informed him that defendant, whom the officer had observed lying unconscious near his heavily damaged automobile, which was smoking and on fire, was the operator of that vehicle. The officer put out the fire and recovered from the automobile a wallet containing defendant's driver's documentation.

A second police officer testified that he had received a police radio report of a 911 call that had been made by a nurse from a hospital to the effect that an operator of a vehicle involved in a motor vehicle accident was intoxicated, and the nurse asked whether the operator was under arrest or would be arrested. Upon the officer's arrival at the hospital, a nurse indicated to him that the suspected intoxicated operator was defendant, who was then occupying a cubicle in the emergency room, and a superior officer informed him by telephone that, if defendant was determined to have been the operator and exhibited indicia of intoxication, he should be arrested. The officer detected a strong odor of an alcoholic beverage in the cubicle, and, before initiating questioning of defendant, he observed that defendant exhibited bloodshot, glassy eyes. Defendant admitted to the officer that he had been involved in an automobile accident and that he had consumed alcoholic beverages. As defendant spoke, the officer detected a speech impairment and the strong odor of an alcoholic beverage on defendant's breath. Defendant subsequently consented to a blood test to determine his blood alcohol content, and, when defendant's blood was sent to a lab for testing, the officer arrested defendant.

Following the hearing, the District Court determined that defendant had been arrested without probable cause, noting{**64 Misc 3d at 80} that the People had failed to produce an eyewitness to defendant's operation of his vehicle and to defendant's state of intoxication at the time of the accident. The court also concluded that the hospital questioning was impermissible given the information known to the second officer, and that the request that defendant submit to a blood test did not, therefore, comply with Vehicle and Traffic Law § 1194 (2) (a). The court reached no other questions. The People appeal, and we reverse.

"Probable cause . . . 'does not require proof . . . beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed [by the defendant]' " (People v Guthrie, 25 NY3d 130, 133 [2015], quoting People v Bigelow, 66 NY2d 417, 423 [1985]; see e.g. People v Newcomb, 58 Misc 3d 153[A], 2018 NY Slip Op 50145[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). In other words, " 'it need merely appear more probable than not that [an offense] has taken place and that the one arrested is its perpetrator' " (People v Wright, 8 AD3d 304, 307 [2004], quoting People v Hill, 146 AD2d 823, 824 [1989]; see also CPL 70.10 [2]; People v Mercado, 68 NY2d 874, 877 [1986]; People v Williams, 127 AD3d 1114, 1116 [2015]). To establish probable cause, the People were required to prove that defendant operated a vehicle while in a condition that violated any subdivision of Vehicle and Traffic Law § 1192, but it was not necessary that they produce "eyewitness testimony that the defendant had actually been observed operating the vehicle" (People v Ramlall, 47 Misc 3d 141[A], 2015 NY Slip Op 50621[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also People v Booden, 69 NY2d 185, 187-188 [1987]; People v Blake, 5 NY2d 118, 120 [1958]; People v Dunster, 146 AD3d 1029, 1030 [2017]; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U], *1 [App Term, 2d Dept, 9th & 10th [*3]Jud Dists 2012]), since " 'operation . . . can be prove[d] by circumstantial evidence' " (People v Zou, 56 Misc 3d 136[A], 2017 NY Slip Op 50996[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017], quoting People v Salerno, 36 Misc 3d 151[A], 2012 NY Slip Op 51699[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). "As a general rule, hearsay is admissible at a suppression hearing" (People v Edwards, 95 NY2d 486, 491 [2000]; see CPL 710.60 [4]), and, at a probable cause hearing, probable cause "may be supplied, in whole or part, through [such] information" (People v Bigelow, 66 NY2d at 423; see e.g. People v Griswold, 155 AD3d 1658, 1659 [2017]).{**64 Misc 3d at 81}

Here, the driver of the vehicle involved in the head-on collision with defendant's vehicle informed the first officer that defendant was the operator of the adverse vehicle. " '[A]n identified citizen informant is presumed to be personally reliable' " (People v Divine, 147 AD3d 1082, 1082 [2017], quoting People v Parris, 83 NY2d 342, 350 [1994]). It is well settled that where it is "a police officer who imparts to fellow officers information gathered while personally participating in or observing an [incident], there is little doubt as to the reliability of the informant [police officer] or the basis of knowledge" (People v Ketcham, 93 NY2d 416, 420 [1999]).

"[A] police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting 'upon the direction of or as a result of communication with' a fellow officer or another police agency in possession of information sufficient to constitute probable cause" (id. at 419, quoting People v Mims, 88 NY2d 99, 113 [1996]; see e.g. People v Cuevas, 140 AD3d 1313, 1314-1315 [2016]; People v Williams, 61 Misc 3d 133[A], 2018 NY Slip Op 51481[U], *1 [App Term, 1st Dept 2018]).

Defendant was then identified by driver's documentation found in his wallet, which the officer had recovered from the inside of defendant's vehicle. Defendant was transported from the accident scene to a hospital, where he was later approached by the second testifying officer. Although the first officer did not testify as to whom he had imparted his information with respect to defendant's involvement as the operator of a vehicle involved in a traffic accident, based on the circumstantial evidence presented at the hearing, we may infer that the first officer conveyed his information to the superior officer who communicated with the second officer at the hospital authorizing defendant's arrest if it was determined that defendant was intoxicated at the time he was operating his vehicle (see People v Mims, 88 NY2d at 114; People v Herbert, 147 AD3d 1208, 1209 [2017]; People v Darby, 287 AD2d 300 [2001]).

Even without accepting the foregoing inference to establish defendant's operation of a motor vehicle for probable cause purposes, defendant's admissions in the hospital that he had "crashed [his] car" which he had been "driving" sufficed to establish the element of operation. Further, the second officer's approach to defendant in the hospital pursuant to an accident investigation was entirely proper given what he knew on the{**64 Misc 3d at 82} basis of the nurse's 911 call and the information received at the hospital as to defendant's involvement in an automobile accident. Defendant's admissions and the physical indicia of intoxication, under the facts presented, were elicited pursuant to the common-law right of inquiry, which requires only a founded suspicion that criminal activity was afoot (see People v Hollman, 79 NY2d 181, 185 [1992]; People v De Bour, 40 NY2d 210, 223 [1976]; People v Karagoz, 143 AD3d 912, 913 [2016]). Thus, defendant's statements were not the product of custodial interrogation and required no Miranda waiver as a predicate to their admissibility (see e.g. People v Bongiorno, 243 AD2d 719, 719[*4][1997]; see also People v O'Hanlon, 5 AD3d 1012 [2004] [and citations therein]). Certainly, "a reasonable person, innocent of any crime, would not have believed that he was in police custody at a hospital following [an] accident" (People v Ragen, 140 AD3d 1092, 1092 [2016]; see also People v Jones, 11 AD3d 902, 903-904 [2004]), and, under the circumstances, the investigatory questions were no less permissible than had they been posed at an accident scene.

Further,

" '[t]he legality of an arrest . . . is not conditioned upon . . . the arresting officer['s] . . . belief as to which subdivision [of Vehicle and Traffic Law § 1192] had been violated. All that is required is that [the officer] have had reasonable cause to believe that defendant had violated [that section]' " (People v Maher, 52 Misc 3d 136[A], 2016 NY Slip Op 51043[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016], quoting People v Hilker, 133 AD2d 986, 987-988 [1987]).

The indicia of actual intoxication observed at the hospital by the second officer, along with the fact of defendant's involvement in an automobile accident, which itself " 'may be construed to circumstantially suggest diminished motor control or impaired driving judgment by reason of [alcohol] consumption' " (People v Koszko, 57 Misc 3d 47, 50 [App Term, 2d Dept, 9th & 10th Jud Dists 2017], quoting People v Maher, 52 Misc 3d 136[A], 2016 NY Slip Op 51043[U], *2; see also People v Green, 59 Misc 3d 134[A], 2018 NY Slip Op 50490[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), justified defendant's arrest "at the very least for driving while impaired" (People v Cosimano, 40 Misc 3d 132[A], 2013 NY Slip Op 51141[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2013] [and citations therein]), and it is irrelevant what additional or{**64 Misc 3d at 83} other offenses might ultimately have been charged (People v Maher, 52 Misc 3d 136[A], 2016 NY Slip Op 51043[U], *2). Given defendant's discovery in an unconscious state at an accident scene and defendant's removal to the hospital, where defendant inferentially remained until interviewed by the second officer, the possibility that defendant had access to alcohol in the interim may be discounted.

Accordingly, the order is reversed, the branches of defendant's omnibus motion seeking to suppress statements, blood alcohol test results, and observations of defendant's physical condition on the ground that defendant's arrest had been without probable cause are denied, and the matter is remitted to the District Court for a determination of the branches of defendant's omnibus motion seeking to suppress evidence on other grounds, in accordance with this decision and order.

Adams, P.J., Garguilo and Ruderman, JJ., concur.