People v Manahan (Jorge)

[*1] People v Manahan (Jorge) 2009 NY Slip Op 50802(U) [23 Misc 3d 134(A)] Decided on April 24, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 24, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2007-554 K CR.

The People of the State of New York, Respondent,

against

Jorge Manahan, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Ruth E. Smith, J., on suppression motion; Miriam R. Best, J., at plea and sentencing), rendered February 26, 2007. The judgment convicted defendant, upon his plea of guilty, of driving while ability impaired. The appeal from the judgment brings up for review the denial of defendant's motion to suppress evidence.

Judgment of conviction affirmed.

Defendant was stopped at a sobriety checkpoint. He subsequently was convicted, after a guilty plea, of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). His sole contention on appeal is that the evidence obtained as a result of the stop should have been suppressed, because the People failed to demonstrate at the
suppression hearing that the checkpoint was conducted in a manner consistent with the Fourth Amendment and New York Constitution, article I, § 12. Specifically, defendant argues that the absence of any written guidelines governing the manner in which the checkpoint was set up and operated rendered the stop unconstitutional. We disagree.

While the purpose of written guidelines is to limit the executing officers' discretion during a checkpoint stop (see e.g. People v Scott, 63 NY2d 518 [1984]), there is no authority that expressly mandates the promulgation of such guidelines. Here, the undisputed police testimony at the hearing established that the checkpoint operation met the applicable federal and state constitutional tests of reasonableness (see Michigan Dept. of State Police v Sitz, 496 US 444, 450 [1990]; People v Scott, 63 NY2d at 525). It advanced a legitimate governmental interest, was not overly intrusive upon motorists, and was carried out in a neutral, nonarbitrary manner (see Michigan Dept. of State Police v Sitz, 496 US 444 [1990], supra; People v Scott, 63 NY2d 518 [1984], supra). [*2]

Although there were no formal written guidelines establishing the procedure for the sobriety checkpoint, it is clear from the record that a procedure aimed at limiting the officers' discretion was established before the checkpoint was instituted. The supervising sergeant outlined, in advance, the precise purpose and location of the sobriety checkpoint, both of which were based on the number of prior accidents and drunk drivers at the location. The sergeant also instructed the officers to stop all non-emergency vehicles passing through the checkpoint. In accordance with these instructions, the arresting officer stopped every vehicle entering his lane of the checkpoint, asked all motorists whether they had been consuming alcohol, and made a written record of the stops. Any element of fear or surprise was obviated by the illumination of turret lights and the placement of traffic cones in front of the checkpoint. In these circumstances, despite the absence of written guidelines, the checkpoint did not impermissibly intrude upon approaching motorists, but rather was maintained safely, conspicuously, and pursuant to "a uniform procedure which afforded little discretion to operating personnel" (People v Scott, 63 NY2d at 526; see People v Serrano, 233 AD2d 170 [1996]; see also People v Dugan, 57 AD3d 300 [2008]; People v Sinzheimer, 15 AD3d 732 [2005]; cf. People v Muhammad F., 94 NY2d 136 [1999] [roving stops in unmarked vehicles made entirely within the officers' discretion are unconstitutional]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Golia JJ., concur.
Decision Date: April 24, 2009