| People v Dugan |
| 2008 NY Slip Op 09726 [57 AD3d 300] |
| December 11, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Dugan, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered December 20,2007, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in thesecond and third degrees, and sentencing him, as a second violent felony offender, to anaggregate term of seven years, unanimously affirmed.
The court properly denied defendant's motion to suppress the physical evidence recoveredfrom his vehicle after it was stopped at a checkpoint. There is no basis for disturbing thecredibility determinations made by a judicial hearing officer and adopted by the court (seePeople v Prochilo, 41 NY2d 759, 761 [1977]), with regard to the circumstances of thecheckpoint stop as well as the ensuing search.
The police testimony satisfied the elements of a valid checkpoint stop. The testimonyestablished that the primary purpose of the checkpoint was roadway safety and enforcement ofvehicular laws and regulations rather than general crime control (see Indianapolis vEdmond, 531 US 32, 41 [2000]), that the checkpoint was effective in advancing thoseinterests (see People v Scott, 63 NY2d 518 [1984]), and that the degree of intrusion ondrivers' liberty and privacy interests was minimal (id. at 526-527). Furthermore, one ofthe officers testified that he kept a written record of the checkpoint stops that had taken place.The fact that this record could not be produced "does not render [the procedure] invalid"(People v Serrano, 233 AD2d 170, 171 [1996], lv denied 89 NY2d 929 [1996]).The officer's testimony satisfied the requirement that "the procedure followed be uniform and notgratuitous or subject to individually discriminatory selection" (id.).
The hearing evidence also established that there was probable cause to search defendant's car.An officer testified that, during the checkpoint stop, he detected the odor of marijuana emanatingfrom the vehicle and observed what appeared to be a marijuana cigar on the console (see People v Feili, 27 AD3d 318[2006], lv denied 6 NY3d 894 [2006]; People v Shabazz, 301 AD2d 412, 413[2003], lv denied 100 NY2d 566 [2003]). The officer testified that he had extensivetraining and experience in detecting the smell of marijuana, and it is of no consequence [*2]that he did not specify whether this background involved burned orunburned marijuana. Concur—Friedman, J.P., McGuire, Acosta, DeGrasse and Freedman,JJ.