Appeal from an order of the County Court of Cortland County (Avery, Jr., J.), entered February 23, 2001, which granted defendant’s motion to dismiss the indictment.
Defendant was arrested for the felony of operating a motor vehicle while intoxicated on February 7, 2000 and subsequently indicted for thаt crime. At the close of a pretrial Huntley hearing, defense counsel, for the first time, argued that defendant was under arrest when he was transported to the police station and the arrest had been effected without probable cause. County Court refusеd to entertain that argument, finding that it should have been raised in his omnibus motion. After the hearing, County Court suppressed some of defendant’s oral statements as involuntary pursuant to CPL 60.45.
Thereafter, defense counsel made an application requesting, inter alia, a probable cause hearing, inspection of the Grand Jury minutes and dismissal or reduction оf the felony charge. Although the People opposed the application, County Court entertained the late application and dismissed the indictment pursuant to CPL 210.35 (5). County Court found that the integrity of the Grand Jury proceeding had been impaired by the pеijured testimony of the arresting officer. The People appeal.
“[A] Grand Jury proceeding is defective when it Tails to cоnform to the requirements of [CPL art 190] to such degree that the integrity thereof is impaired and prejudice to the de
At the Huntley hearing here, Trooper Christоpher Shields testified that he administered an alco-sensor test shortly after defendant exited his vehicle; this information, however, wаs omitted from the Grand Jury at the direction of the prosecution. In fact, when asked by the prosecutor during the Grand Jury presentment, “Did you ask [defendant] to submit to any roadside chemical sobriety test,” Shields incorrectly answered, “No, I didn’t.” Although we do not excuse what happened here, under all the circumstances, it is unnecessary to make a determination whether Shields’ answer constituted рerjury. We come to that conclusion because Shields’ answer lacked the potential to prejudice the Grand Jury’s ultimatе decision since the remaining evidence was sufficient to sustain the indictment (see, id., at 410).
The evidence established that defendant was discоvered alone, asleep in his parked vehicle off the paved road in the southbound lane of Interstate Route 81 at 5:15 a.m. When tapping on the window failed to get a response, Shields opened the door and shook defendant. Shields asked him if he knеw where he was coming from and where he was going. Defendant answered that he was coming from the City of Syracuse, Onondaga County, but did nоt know where he was going. Shields noticed a strong odor of alcohol when defendant spoke and his speech was slurred. He did not find any empty liquor containers in or around the vehicle. Shields asked defendant if he had anything to drink and defendant indicated that he hаd some beers and “JD” (Jack Daniels) a while ago. Defendant, thereafter, admitted that he had “a lot” to drink. He failed several fiеld sobriety tests administered at the station by State Trooper Richard Prunier. Shields also testified that defendant produced a driver’s liсense in the name Michael Spencer showing a date of birth of January 30, 1959
The forеgoing evidence, “viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant [defendant’s] conviction by a petit jury” (People v Jennings,
Next, we address defendant’s contention that Shields lacked probable cause to arrest defendant. Initially, we find that Shields’ questioning of defendant at the scene as to whether he had been drinking was investigatory rather than custodial interrogаtion (see, People v Hanna,
Notes
As originally transcribed and submitted to County Court, the Grand Jury minutes reflected defendant’s date of birth as “3/30/59,” a date which did not match the date of birth set forth in the certificate of conviction.