Matter of Mayrich Construction Corporation v Raymond P. Martinez

Matter of Mayrick Constr. Corp. v Martinez 2004 NY Slip Op 08960 [13 AD3d 68] December 2, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

In the Matter of Mayrick Construction Corporation, Petitioner,
v
Raymond P. Martinez, as Commissioner of the New York State Department of Motor Vehicles, Traffic Violations Bureau, Respondent.

—[*1]

Determination of respondent Commissioner of Motor Vehicles, dated February 18, 2003, finding that petitioner's truck was overweight in violation of New York City Traffic Rules and Regulations (34 RCNY) § 4-15 (b) (9), and imposing a fine, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, Bronx County [Anne E. Targum, J.], entered November 21, 2003) dismissed, without costs.

Respondent's operation of a weigh station checkpoint pursuant to a plan to stop every third truck meets the constitutional requirement to minimize officer discretion (see Matter of Ferrara Bros. Bldg. Materials Corp. v Martinez, 11 AD3d 214 [2004]). Such plan is not rendered unconstitutional by the absence of evidence that it was promulgated in a writing emanating from the higher echelons of the Police Department, or by the fact that not every third truck was stopped when the officers assigned to the checkpoint were busy weighing a truck that had already been pulled over (see People v Serrano, 233 AD2d 170 [1996], lv denied 89 NY2d 929 [1996]). We have considered and rejected petitioner's other arguments. Concur—Sullivan, J.P., Ellerin, Lerner, Marlow and Catterson, JJ.