Opinion
1315 KA 15–01850
12-21-2018
The PEOPLE of the State of New York, Respondent v. Mark H. STAHL, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON, ROCHESTER, OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON, ROCHESTER, OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of two counts of driving while intoxicated (DWI) as a class E felony ( Vehicle and Traffic Law §§ 1192[2], [3] ; 1193[1][c][i][A] ) and one count of unlawful possession of marihuana ( Penal Law § 221.05 ), defendant contends that County Court erred in refusing to suppress all evidence seized as a result of the stop of his vehicle at a DWI checkpoint. We reject that contention; therefore, we affirm.
It is well settled that "individualized suspicion is not a prerequisite to a constitutional seizure of an automobile which is ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers’ " ( People v. Scott, 63 N.Y.2d 518, 525, 483 N.Y.S.2d 649, 473 N.E.2d 1 [1984] ). Here, we agree with the People that defendant's vehicle was stopped "pursuant to a nonarbitrary, nondiscriminatory and uniform procedure, involving the stop of all vehicles" approaching the checkpoint ( People v. John BB., 56 N.Y.2d 482, 488, 453 N.Y.S.2d 158, 438 N.E.2d 864 [1982], cert denied 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 [1982] ). Moreover, the State Troopers "were given explicit verbal instructions on the procedures to be used at the roadblock, including the nature of the questions to be asked of every driver, and those instructions ‘afforded little discretion to [the] personnel’ " at the checkpoint ( People v. Gavenda, 88 A.D.3d 1295, 1296, 930 N.Y.S.2d 393 [4th Dept. 2011] ; see People v. La Fountain, 283 A.D.2d 1013, 1014, 725 N.Y.S.2d 249 [4th Dept. 2001] ). Contrary to defendant's further contention, the Trooper who initiated the removal of defendant's vehicle from the line at the checkpoint for further investigation was not the sergeant who determined where and when the checkpoint should be set up (see generally Matter of Muhammad F., 94 N.Y.2d 136, 144, 700 N.Y.S.2d 77, 722 N.E.2d 45 [1999], cert denied 531 U.S. 1044, 121 S.Ct. 643, 148 L.Ed.2d 549 [2000] ). Furthermore, we reject defendant's contention that the checkpoint was illegal because there were no written guidelines concerning the operation of the checkpoint (see People v. Haskins, 86 A.D.3d 794, 796, 928 N.Y.S.2d 374 [3d Dept. 2011], lv denied 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162 [2011] ; People v. Sinzheimer, 15 A.D.3d 732, 734, 790 N.Y.S.2d 554 [3d Dept. 2005], lv denied 5 N.Y.3d 794, 801 N.Y.S.2d 815, 835 N.E.2d 675 [2005] ; People v. Serrano, 233 A.D.2d 170, 171, 650 N.Y.S.2d 95 [1st Dept. 1996], lv denied 89 N.Y.2d 929, 654 N.Y.S.2d 732, 677 N.E.2d 304 [1996] ).