PEOPLE v. KIRKEY

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-respondent, v. Robert J. KIRKEY, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND HAYES, JJ. Edward J. Nowak, Public Defender, Rochester (Kathleen McDonough of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Michael J. Nolan of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him following a jury trial of two counts of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192[2], [3];  § 1193[1][c][i] ), defendant contends that the police lacked reasonable suspicion to stop the vehicle that he was driving and thus that the evidence obtained as the result of that illegal stop should have been suppressed.   We reject that contention.   The police had the requisite reasonable suspicion to stop the vehicle driven by defendant based on information provided by an identified citizen informant (see People v. Van Every, 1 A.D.3d 977, 978-979, 767 N.Y.S.2d 176, lv. denied 1 N.Y.3d 602, 776 N.Y.S.2d 233, 808 N.E.2d 369), and that information was corroborated by the personal observations of the officer who stopped the vehicle (see People v. Hoffman, 283 A.D.2d 928, 725 N.Y.S.2d 494, lv. denied 96 N.Y.2d 919, 732 N.Y.S.2d 636, 758 N.E.2d 662;  cf. People v. Jeffery, 2 A.D.3d 1271, 769 N.Y.S.2d 675).   We also reject the contention of defendant that County Court erred in admitting the results of his breathalyzer test in evidence.   The People presented a proper foundational basis “from which the trier of fact could reasonably conclude that the test results were derived from a properly functioning machine using properly constituted chemicals” (People v. Freeland, 68 N.Y.2d 699, 701, 506 N.Y.S.2d 306, 497 N.E.2d 673;  cf. People v. Uruburu, 169 A.D.2d 20, 24-26, 571 N.Y.S.2d 965, lv. denied 78 N.Y.2d 1082, 577 N.Y.S.2d 246, 583 N.E.2d 958).   Finally, we reject defendant's contention concerning the severity of the sentence.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed.

MEMORANDUM: