field sobriety test in New York

2015Even crediting defendant’s contention that there was contradictory evidence regarding whether a field sobriety test was conducted at the scene, we nevertheless conclude from the totality of the circumstances, including defendant’s erratic driving, defendant’s appearance, and the odor of alcohol detected by the officer, that there was probable cause to believe that defendant was driving in violation of Vehicle and Traffic Law § 1192 (see People v LeRow, 70 AD3d 66, 71 [2009]; People v Mojica, 62 AD3d 100, 114 [2009], lv denied 12 NY3d 856 [2009]; People v Scalzo, 176 AD2d 363, 364 [1991]).

2015Even crediting defendant’s contention that there was contradictory evidence regarding whether a field sobriety test was conducted at the scene, we nevertheless conclude from the totality of the circumstances, including defendant’s erratic driving, defendant’s appearance, and the odor of alcohol detected by the officer, that there was probable cause to believe that defendant was driving in violation of Vehicle and Traffic Law § 1192 (see People v LeRow, 70 AD3d 66, 71 [2009]; People v Mojica, 62 AD3d 100, 114 [2009], lv denied 12 NY3d 856 [2009]; People v Scalzo, 176 AD2d 363, 364 [1991]).

1999This evidence, in conjunction with Leguire’s testimony as to defendant’s physical condition, his mother’s acknowledgment that he had been driving, his failure to pass the field sobriety test at the station and the results of the breathalyzer, provided ample support for the jury’s conclusion that defendant operated his vehicle while in an intoxicated condition (see, People v Hasenflue, 252 AD2d 829, 831-832 ; People v- Charland, 194 AD2d 827 ).

1999This evidence, in conjunction with Leguire’s testimony as to defendant’s physical condition, his mother’s acknowledgment that he had been driving, his failure to pass the field sobriety test at the station and the results of the breathalyzer, provided ample support for the jury’s conclusion that defendant operated his vehicle while in an intoxicated condition (see, People v Hasenflue, 252 AD2d 829, 831-832 ; People v Charland, 194 AD2d 827 ).

2019The People met their burden of establishing the legality of the initial traffic stop through the testimony of Police Officer Jason Fasano that he observed that the taillights on the defendant's vehicle were inoperable as the defendant drove past him on the road at 9:45 p.m. ( see People v Robinson , 97 NY2d 341, 347 ; People v Wyatt , 153 AD3d 1371, 1372 ; People v Vargas , 123 AD3d 1149 ; People v White , 40 AD3d 535 ).

2015Based upon those facts the Officer had probable cause to arrest the defendant (see People v Vargas, 123 AD3d 1149 [2d Dept 2014] [defendant’s appearance combined with the smell of alcohol emanating from him and his failure of a field sobriety test gave officer probable cause to arrest for driving while intoxicated]; People v Tieman, 112 AD3d 975 [2d Dept 2013] [glassy eyes combined with odor of alcohol emanating from defendant’s breath combined with erratic driving gave the police probable cause to arrest the defendant for violating Vehicle and Traffic Law § 1192]).

2014The defendant opposed the FST evidence as unreliable and contrary to the Court of Appeals ruling in People v Thomas ( 70 NY2d 823 [1987], affg 121 AD2d 73 [4th Dept 1986]), and its progeny. 1 On October 20, 2014, the court conducted a hearing to determine the admissibility of the Intoximeter Alco Sensor FST results.

1988To the extent that Supreme Court erred in allowing testimony about the field sobriety test known as "Horizontal Gaze Nystagmus” without a proper foundation as to its scientific acceptance or reliability (see, People v Thomas, 121 AD2d 73, 76 , affd 70 NY2d 823 ; see also, Frye v United States, 293 F 1013; Commonwealth v Miller, 367 Pa Super 359, 532 A2d 1186 ; State v Barker, 366 SE2d 642 [W Va]; cf., State v Superior Ct., 149 Ariz 269, 718 P2d 171 ), we conclude that it was harmless error in light of the overwhelming evidence of guilt (see, People v Crimmins, 36 NY2d 230 ; Commonwealth v Mill

2014The defendant opposed the FST evidence as unreliable and contrary to the Court of Appeals ruling in People v Thomas ( 70 NY2d 823 [1987], affg 121 AD2d 73 [4th Dept 1986]), and its progeny. 1 On October 20, 2014, the court conducted a hearing to determine the admissibility of the Intoximeter Alco Sensor FST results.

1988To the extent that Supreme Court erred in allowing testimony about the field sobriety test known as "Horizontal Gaze Nystagmus” without a proper foundation as to its scientific acceptance or reliability (see, People v Thomas, 121 AD2d 73, 76 , affd 70 NY2d 823 ; see also, Frye v United States, 293 F 1013; Commonwealth v Miller, 367 Pa Super 359, 532 A2d 1186 ; State v Barker, 366 SE2d 642 [W Va]; cf., State v Superior Ct., 149 Ariz 269, 718 P2d 171 ), we conclude that it was harmless error in light of the overwhelming evidence of guilt (see, People v Crimmins, 36 NY2d 230 ; Commonwealth v Mill

1999This evidence, in conjunction with Leguire’s testimony as to defendant’s physical condition, his mother’s acknowledgment that he had been driving, his failure to pass the field sobriety test at the station and the results of the breathalyzer, provided ample support for the jury’s conclusion that defendant operated his vehicle while in an intoxicated condition (see, People v Hasenflue, 252 AD2d 829, 831-832 ; People v- Charland, 194 AD2d 827 ).

1999This evidence, in conjunction with Leguire’s testimony as to defendant’s physical condition, his mother’s acknowledgment that he had been driving, his failure to pass the field sobriety test at the station and the results of the breathalyzer, provided ample support for the jury’s conclusion that defendant operated his vehicle while in an intoxicated condition (see, People v Hasenflue, 252 AD2d 829, 831-832 ; People v Charland, 194 AD2d 827 ).

2026An officer's observation that an individual has breath that smells of alcohol, bloodshot or glassy eyes, slurred or illogical speech, difficultly walking, or failing a field sobriety test or PBT may form the basis for "reasonable grounds" or probable cause for an arrest pursuant to VTL § 1192 (1), (3) or administer a chemical analysis under VTL § 1194 (2) ( People v Rufus , 43 NY3d 268 , 271-272 [2024]; Fermin-Perea v Swarts , 95 AD3d at 441 ; People v Taylor , 104 AD34 603, 604 [2013]).

2019The People met their burden of establishing the legality of the initial traffic stop through the testimony of Police Officer Jason Fasano that he observed that the taillights on the defendant's vehicle were inoperable as the defendant drove past him on the road at 9:45 p.m. ( see People v Robinson , 97 NY2d 341, 347 ; People v Wyatt , 153 AD3d 1371, 1372 ; People v Vargas , 123 AD3d 1149 ; People v White , 40 AD3d 535 ).

2019The People met their burden of establishing the legality of the initial traffic stop through the testimony of Police Officer Jason Fasano that he observed that the taillights on the defendant's vehicle were inoperable as the defendant drove past him on the road at 9:45 p.m. ( see People v Robinson , 97 NY2d 341, 347 ; People v Wyatt , 153 AD3d 1371, 1372 ; People v Vargas , 123 AD3d 1149 ; People v White , 40 AD3d 535 ).

2019The People met their burden of establishing the legality of the initial traffic stop through the testimony of Police Officer Jason Fasano that he observed that the taillights on the defendant's vehicle were inoperable as the defendant drove past him on the road at 9:45 p.m. ( see People v Robinson , 97 NY2d 341, 347 ; People v Wyatt , 153 AD3d 1371, 1372 ; People v Vargas , 123 AD3d 1149 ; People v White , 40 AD3d 535 ).

2015(People v Kulk, 103 AD3d 1038 [3d Dept 2013].) The Kulk decision denied admission of the preliminary breath test carried out on an alco-sensor device by sustaining an objection to the admission of the results from that device.

2015Although we refused to accept their similar reasoning in People v Normatov, an earlier unpublished opinion of this court, the People again rely on People v Hampe ( 181 AD2d 238 [3d Dept 1992]) as the controlling legislation on the admission of breath test results and elimination of the need for expert testimony establishing the accuracy and reliability of a testing device. 1 (People v Normatov, Crim Ct, Kings County, June 23, 2014, docket No. 2012KN075281.) However, more than 20 years after Hampe , in 2013, the Appellate Division, Third Department made a distinction between admission of the re

2015Although we refused to accept their similar reasoning in People v Normatov, an earlier unpublished opinion of this court, the People again rely on People v Hampe ( 181 AD2d 238 [3d Dept 1992]) as the controlling legislation on the admission of breath test results and elimination of the need for expert testimony establishing the accuracy and reliability of a testing device. 1 (People v Normatov, Crim Ct, Kings County, June 23, 2014, docket No. 2012KN075281.) However, more than 20 years after Hampe , in 2013, the Appellate Division, Third Department made a distinction between admission of the re

2015Based upon those facts the Officer had probable cause to arrest the defendant (see People v Vargas, 123 AD3d 1149 [2d Dept 2014] [defendant’s appearance combined with the smell of alcohol emanating from him and his failure of a field sobriety test gave officer probable cause to arrest for driving while intoxicated]; People v Tieman, 112 AD3d 975 [2d Dept 2013] [glassy eyes combined with odor of alcohol emanating from defendant’s breath combined with erratic driving gave the police probable cause to arrest the defendant for violating Vehicle and Traffic Law § 1192]).

2015Based upon those facts the Officer had probable cause to arrest the defendant (see People v Vargas, 123 AD3d 1149 [2d Dept 2014] [defendant’s appearance combined with the smell of alcohol emanating from him and his failure of a field sobriety test gave officer probable cause to arrest for driving while intoxicated]; People v Tieman, 112 AD3d 975 [2d Dept 2013] [glassy eyes combined with odor of alcohol emanating from defendant’s breath combined with erratic driving gave the police probable cause to arrest the defendant for violating Vehicle and Traffic Law § 1192]).

2015Under all of the circumstances, the jury’s award of punitive damages was entirely appropriate to punish *1004 Dernago for his wanton and reckless conduct (see Schragel v Juszczyk, 43 AD3d at 1376 ; Arumugam v Smith, 277 AD2d 979 [2000]; Rinaldo v Mashayekhi, 185 AD2d 435, 436 [1992]), and to help deter future reprehensible conduct (see Ross v Louise Wise Servs., Inc., 8 NY3d at 489 ).

2015Under all of the circumstances, the jury’s award of punitive damages was entirely appropriate to punish *1004 Dernago for his wanton and reckless conduct (see Schragel v Juszczyk, 43 AD3d at 1376 ; Arumugam v Smith, 277 AD2d 979 [2000]; Rinaldo v Mashayekhi, 185 AD2d 435, 436 [1992]), and to help deter future reprehensible conduct (see Ross v Louise Wise Servs., Inc., 8 NY3d at 489 ).

2015Under all of the circumstances, the jury’s award of punitive damages was entirely appropriate to punish *1004 Dernago for his wanton and reckless conduct (see Schragel v Juszczyk, 43 AD3d at 1376 ; Arumugam v Smith, 277 AD2d 979 [2000]; Rinaldo v Mashayekhi, 185 AD2d 435, 436 [1992]), and to help deter future reprehensible conduct (see Ross v Louise Wise Servs., Inc., 8 NY3d at 489 ).

2014Furthermore, 1 A field sobriety test was not conducted because, at the time that defendant was apprehended, he was "a flight risk." -3- 105837 the People provided adequate limiting instructions to that effect on three separate occasions (see People v Jackson, 100 AD3d at 1261; People v McCottery, 90 AD3d at 1325 ; People v Abare, 86 AD3d at 805 ; People v Ewell, 12 AD3d 616 , 617 [2004], lv denied 4 NY3d 763 [2005]).

2014Furthermore, 1 A field sobriety test was not conducted because, at the time that defendant was apprehended, he was "a flight risk." -3- 105837 the People provided adequate limiting instructions to that effect on three separate occasions (see People v Jackson, 100 AD3d at 1261; People v McCottery, 90 AD3d at 1325 ; People v Abare, 86 AD3d at 805 ; People v Ewell, 12 AD3d 616 , 617 [2004], lv denied 4 NY3d 763 [2005]).

2014Furthermore, 1 A field sobriety test was not conducted because, at the time that defendant was apprehended, he was "a flight risk." -3- 105837 the People provided adequate limiting instructions to that effect on three separate occasions (see People v Jackson, 100 AD3d at 1261; People v McCottery, 90 AD3d at 1325 ; People v Abare, 86 AD3d at 805 ; People v Ewell, 12 AD3d 616 , 617 [2004], lv denied 4 NY3d 763 [2005]).

2014Furthermore, 1 A field sobriety test was not conducted because, at the time that defendant was apprehended, he was "a flight risk." -3- 105837 the People provided adequate limiting instructions to that effect on three separate occasions (see People v Jackson, 100 AD3d at 1261; People v McCottery, 90 AD3d at 1325 ; People v Abare, 86 AD3d at 805 ; People v Ewell, 12 AD3d 616 , 617 [2004], lv denied 4 NY3d 763 [2005]).

2012Matter of Whelan v Adduci ( 133 AD2d 273 [1987], lv denied 70 NY2d 616 [1988]) is inapposite.