PEOPLE v. ALLEN (2005)

 Defendant appeals from a judgment convicting her after a jury trial of two counts of driving while intoxicated (Vehicle and Traffic Law § 1192[2], [3];  § 1193[1][c][i] ).   Contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to the further contention of defendant, the police officer, who followed her vehicle and observed her vehicle straddling the fog line and then turn abruptly into a bank parking lot, had an objective credible reason to approach defendant's vehicle when it was parked at the ATM and request information from defendant (see People v. Ocasio, 85 N.Y.2d 982, 984-985, 629 N.Y.S.2d 161, 652 N.E.2d 907;  see generally People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   Thereafter, the police officer detected the odor of alcoholic beverages on defendant's breath, defendant admitted that she had consumed several alcoholic drinks and defendant failed to perform field sobriety tests adequately.   We therefore conclude that the arrest was based upon probable cause.   Defendant's statements in response to the investigatory questions were not made in a custodial setting and thus County Court properly refused to suppress those statements (see People v. Bennett, 70 N.Y.2d 891, 893-894, 524 N.Y.S.2d 378, 519 N.E.2d 289;  People v. Baker, 188 A.D.2d 1012, 592 N.Y.S.2d 161, lv. denied 81 N.Y.2d 967, 598 N.Y.S.2d 768, 615 N.E.2d 225).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: