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

Reset A A Font size: Print

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

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.

KA 11–00612

Decided: October 07, 2011

PRESENT:  FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ. MICHAEL M. MOHUN, COWLESVILLE, FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 A.D.2d 1013;  see generally People v. Scott, 63 N.Y.2d 518).   Defendant's vehicle was stopped “pursuant to a nonarbitrary, nondiscriminatory and uniform procedure, involving the stop of all vehicles” approaching the roadblock (People v. John BB., 56 N.Y.2d 482, 488, cert denied 459 U.S. 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 N.Y.2d at 526).

Patricia L. Morgan

Clerk of the Court