PEOPLE v. GIBEAU (2008)

On appeal from a judgment convicting him upon his plea of guilty of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2];  § 1193[1][c] [former (ii) ] ), defendant contends that his arrest was not supported by probable cause and thus that County Court erred in refusing to suppress his statements and other evidence obtained as the result of his arrest.  We reject that contention, inasmuch as we agree with the court that the arresting officer's actions were justified from the officer's initial approach of defendant's vehicle to the time of the arrest (see People v. Nicodemus, 247 A.D.2d 833, 835, 669 N.Y.S.2d 98, lv. denied 92 N.Y.2d 858, 677 N.Y.S.2d 88, 699 N.E.2d 448;  see generally People v. De Bour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562).  The record establishes that the officer had an objective credible reason to approach defendant's parked vehicle (see People v. Allen, 15 A.D.3d 933, 789 N.Y.S.2d 383, lv. denied 4 N.Y.3d 883, 798 N.Y.S.2d 728, 831 N.E.2d 973;  People v. Heston, 152 A.D.2d 999, 543 N.Y.S.2d 803, lv. denied 76 N.Y.2d 858, 560 N.Y.S.2d 998, 561 N.E.2d 898, 76 N.Y.2d 940, 563 N.Y.S.2d 69, 564 N.E.2d 679), and his question concerning defendant's reason for being in the area was merely a request for information (see generally People v. Hollman, 79 N.Y.2d 181, 191, 581 N.Y.S.2d 619, 590 N.E.2d 204).  The officer's level of suspicion and justification for increasingly intrusive police action escalated when defendant responded to the question by stating that he had not been driving, a response known by the officer to be false.  Defendant also displayed signs of intoxication, i.e., glassy eyes, slurred speech, slow response and impaired motor functions, and his performance on field sobriety tests further indicated that he was intoxicated.  We therefore conclude that the arrest was supported by probable cause (see Allen, 15 A.D.3d 933, 789 N.Y.S.2d 383).

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

MEMORANDUM: