People v Figueroa (Russell)

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[*1] People v Figueroa (Russell) 2020 NY Slip Op 51010(U) Decided on August 27, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 27, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2018-1101 S CR

The People of the State of New York, Respondent,

against

Russell Figueroa, Appellant.

Suffolk County Legal Aid Society (Edward E. Smith of counsel), for appellant. Suffolk County District Attorney (Michael J. Brennan), for respondent.

Appeal from two judgments of conviction of the District Court of Suffolk County, First District (Karen Kerr, J.), rendered April 25, 2018. The judgments convicted defendant, upon his pleas of guilty, of driving while intoxicated (per se) and driving while intoxicated (common law), and of possession of an open container of an alcoholic beverage in a motor vehicle, respectively, and imposed sentences. The appeal from the judgments brings up for review an order of that court denying, after a hearing, the branch of defendant's omnibus motion seeking to suppress evidence.

ORDERED that the judgments of conviction are affirmed.

Defendant was stopped at a sobriety checkpoint. As a result of that stop, defendant was charged, insofar as is relevant to this appeal, with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), and, in a separate accusatory instrument, with possession of an open container of an alcoholic beverage in a motor vehicle (Vehicle and Traffic Law § 1227 [1]). After defendant's motion to, among other things, suppress all evidence obtained as a result of the stop was denied, defendant pleaded guilty to the aforementioned charges. On appeal, defendant contends that the branch of his motion seeking to suppress should have been granted because the People failed to establish the constitutionality of the checkpoint at the suppression hearing. Defendant further argues that his pleas of guilty were not knowing, voluntary, or intelligent because he was not advised of certain constitutional rights he was forfeiting as a result of his pleas of guilty. For the reasons that follow, we affirm.

At the hearing, the People met their burden of establishing that the checkpoint had been created and operated in a manner "consistent with the Fourth Amendment and New York Constitution, article I, § 12" (People v Manahan, 23 Misc 3d 134[A], 2009 NY Slip Op 50802[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). The checkpoint's location and the particulars as to the manner in which it was to be operated had been determined by the [*2]checkpoint commander sergeant before the checkpoint was instituted (see People v Mikalsen, 52 Misc 3d 142[A], 2016 NY Slip Op 51197[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v Pureco-Martinez, 46 Misc 3d 143[A], 2015 NY Slip Op 50182[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; People v Manahan, 23 Misc 3d 134[A], 2009 NY Slip Op 50802[U]). The primary purpose of the checkpoint was to deter drunk and impaired driving, and to promote highway safety (see People v Scott, 63 NY2d 518, 526-527 [1984]; People v Kemper, 65 Misc 3d 150[A], 2019 NY Slip Op 51855[U] [App Term, 1st Dept 2019]; People v Ramirez, 62 Misc 3d 146[A], 2019 NY Slip Op 50203[U] [App Term, 1st Dept 2019]; People v Mikalsen, 52 Misc 3d 142[A], 2016 NY Slip Op 51197[U]). The operating personnel were given explicit verbal instructions on how to operate the checkpoint (see People v Stahl, 167 AD3d 1555, 1556 [2018]; People v Gavenda, 88 AD3d 1295, 1296 [2011]). The degree of intrusion on drivers' liberty and privacy interests was minimal (see People v Kemper, 65 Misc 3d 150[A], 2019 NY Slip Op 51855[U]; People v Ramirez, 62 Misc 3d 146[A], 2019 NY Slip Op 50203[U]). The procedure followed, namely, stopping every vehicle approaching the checkpoint, was "uniform and not gratuitous or subject to individually discriminatory selection" (People v Serrano, 233 AD2d 170, 171 [1996]; see People v John BB., 56 NY2d 482, 488 [1982]; People v Stahl, 167 AD3d at 1556; People v Kemper, 65 Misc 3d 150[A], 2019 NY Slip Op 51855[U]; People v Mannix, 63 Misc 3d 131[A], 2019 NY Slip Op 50411[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Ramirez, 62 Misc 3d 146[A], 2019 NY Slip Op 50203[U]; People v Mikalsen, 52 Misc 3d 142[A], 2016 NY Slip Op 51197[U]). Furthermore, signs conspicuously displayed near the entrance of the checkpoint, the placement of traffic cones and police vehicles with activated emergency lights, and the officers' wearing reflective vests and employing flashlights to alert oncoming motorists of their presence provided adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint (see People v Mannix, 63 Misc 3d 131[A], 2019 NY Slip Op 50411[U]; People v Mikalsen, 52 Misc 3d 142[A], 2016 NY Slip Op 51197[U]; People v Pureco-Martinez, 46 Misc 3d 143[A], 2015 NY Slip Op 50182[U]).

Contrary to defendant's contention, the checkpoint was not rendered invalid by the fact that the operating officers were not required to ask each motorist passing the checkpoint to produce his or her driver's license or proof of insurance. Although the Rules and Procedures of the Suffolk County Police Department provides that "[s]creening officers shall . . . [a]sk each driver to produce his/her driver license and proof of insurance," the checkpoint commander sergeant explained that he had decided, in advance, not to follow that mandate because requiring each motorist to produce a driver's license and proof of insurance would unnecessarily impede traffic flow and slow down the operation of the checkpoint, which, according to the sergeant, was in conflict with the policy of the Rules and Procedures. Moreover, since there is no authority that expressly mandates the promulgation of written guidelines for the arrangement and use of a checkpoint, such as the Rules and Procedures involved herein (see People v Stahl, 167 AD3d at 1556; People v Haskins, 86 AD3d 794, 796 [2011]; People v Mikalsen, 52 Misc 3d 142[A], 2016 NY Slip Op 51197[U]), a deviation, if any, from the Rules and Procedures does not make the otherwise constitutional checkpoint unconstitutional. Consequently, the branch of defendant's motion seeking to suppress evidence was properly denied.

Defendant failed to preserve his contention that his pleas of guilty were not knowing, voluntary, or intelligent, as defendant failed to move to vacate his pleas prior to the imposition of [*3]the sentences or otherwise raise the issue before the District Court (see CPL 470.05 [2]; People v Thomas, 150 AD3d 770, 770-771 [2017]; People v Jackson, 114 AD3d 807, 807 [2014]; People v Mero-Lopez, 51 Misc 3d 137[A], 2016 NY Slip Op 50577[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In any event, defendant's contention is without merit. "There is no uniform mandatory catechism for accepting a plea of guilty" (People v Isaiah S., 130 AD3d 1081, 1082 [2015]; see People v Tyrell, 22 NY3d 359, 365 [2013]; People v Seeber, 4 NY3d 780, 781 [2005]). "A guilty plea therefore will not be invalidated 'solely because the Trial Judge failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea' " (People v Tyrell, 22 NY3d at 365, quoting People v Harris, 61 NY2d 9, 16 [1983]). Here, defendant, who had a lengthy criminal history and the assistance of an attorney, was expressly advised by the District Court that a plea of guilty involved the waiver of certain constitutional rights, including the right to have the People prove the case against him beyond a reasonable doubt and the right to confront witnesses against him. Defendant acknowledged that he "had an opportunity to discuss the case" with his attorney and that he was satisfied with his attorney's representation. Defendant stated that he was pleading guilty freely, admitted his guilt, and acknowledged the facts underlying his offenses. In view of the foregoing and the representation by counsel for an extensive period of time from defendant's arraignment until the plea proceeding (see People v Mero-Lopez, 51 Misc 3d 137[A], 2016 NY Slip Op 50577[U]), we find that the record as a whole affirmatively demonstrates that defendant entered his pleas of guilty knowingly, voluntarily and intelligently (see People v Jackson, 114 AD3d at 808; People v Kiselyov, 52 Misc 3d 140[A], 2016 NY Slip Op 51165[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v Singleton, 51 Misc 3d 145[A], 2016 NY Slip Op 50730[U] [App Term, 1st Dept 2016]; People v Atkins, 51 Misc 3d 144[A], 2016 NY Slip Op 50709[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v Collins, 46 Misc 3d 140[A], 2015 NY Slip Op 50134[U] [App Term, 1st Dept 2015]).

Accordingly, the judgments of conviction are affirmed.

ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 27, 2020