PEOPLE v. DEVOLL (2022)

ORDERED that the judgment of conviction is affirmed.

In January 2018, defendant was charged with, among other things, driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]). After a combined Mapp/Huntley/Dunaway/Ingle hearing, the court denied suppression of evidence and certain statements defendant made to law enforcement, concluding, in relevant part, that the traffic stop was lawful because there was probable cause to believe defendant was speeding. Subsequently, defendant pleaded guilty to driving while intoxicated (per se).

On appeal, defendant contends that the judgment of conviction should be reversed because the court improperly denied suppression, as the stop of his vehicle was unlawful.

A traffic stop is permitted when an officer “ ‘has probable cause to believe that the driver of an automobile has committed a traffic violation’ ” (People v Guthrie, 25 NY3d 130, 133 [2015], quoting People v Robinson, 97 NY2d 341, 349 [2001]). “A finding of probable cause does not ․ require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case. Rather, 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] [citations and internal quotation marks omitted]; see CPL 70.10 [2]; People v Williams, 127 AD3d 1114, 1116 [2015]; People v Fox, 70 Misc 3d 139[A], 2021 NY Slip Op 50121[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). Probable cause is established where the “facts and circumstances ․, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed and that the defendant committed or is committing that offense” (People v Brown, 256 AD2d 414, 415 [1998]; see People v Bigelow, 66 NY2d 417, 423 [1985]).

We find that, contrary to defendant's contention, the hearing testimony, viewed as a whole, was sufficient to support a probable cause determination for the stop of defendant's vehicle based on the commission of a traffic infraction, i.e., speeding. “[O]pinion evidence with regard to the speed of moving vehicles is admissible provided that the witness who testifies first shows some experience in observing the rate of speed of moving objects or some other satisfactory reason or basis for his [or her] opinion” (People v Olsen, 22 NY2d 230, 231-232 [1968]; see People v Scott, 189 AD3d 2110, 2111 [2020]). The arresting officer testified that, as two vehicles, one of which was defendant's, approached the location of his stationary patrol vehicle on the West Shore Expressway in Staten Island, he observed that they were “very close” to each other. Although the officer's testimony regarding the positions of each of those vehicles differed from what was shown in the dashcam video, he testified that both vehicles were “driving fast” and going “approximately the same speed.” By his “independent visual estimation,” the two vehicles were driving 75 miles per hour in a 50 miles-per-hour zone. The officer testified that he had been trained in visually estimating the speed of moving vehicles and that he could estimate speed within plus or minus five miles per hour.

Accordingly, the judgment of conviction is affirmed.

WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.