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The People of the State of New York v. Donald W. Gavenda

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


October 7, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
DONALD W. GAVENDA, JR., ALSO KNOWN AS DONALD GAVENDA, ALSO KNOWN AS
DONALD W. GAVENDA, DEFENDANT-APPELLANT.

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered June 15, 2010.

People v Gavenda

2011 NY Slip Op 07111

Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 7, 2011

PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.

The judgment convicted defendant, upon a non-jury verdict, of driving while intoxicated, a class E felony.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:

On appeal from a judgment convicting him of felony driving while intoxicated ([DWI] Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [former (i)]), defendant contends that County Court erred in refusing to suppress all evidence obtained when he was stopped at a DWI checkpoint and thereafter arrested. According to defendant, the DWI checkpoint constituted an unreasonable seizure in violation of the Fourth Amendment of the United States Constitution and article I, section 12 of the New York Constitution. We reject that contention. The court properly determined that the roadblock jointly conducted by the Genesee County Sheriff's Department and the Batavia Police Department to detect persons who were driving while intoxicated was a constitutionally permissible seizure (see People v LaFountain, 283 AD2d 1013; see generally People v Scott, 63 NY2d 518). Defendant's vehicle was stopped "pursuant to a non-arbitrary, nondiscriminatory and uniform procedure, involving the stop of all vehicles" approaching the roadblock (People v John BB., 56 NY2d 482, 488, cert denied 459 US 1010). Moreover, all of the police personnel involved 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" (Scott, 63 NY2d at 526).

Entered: October 7, 2011

Patricia L. Morgan Clerk of the Court

20111007

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