| People v Haskins |
| 2011 NY Slip Op 05990 [86 AD3d 794] |
| July 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesHaskins, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Schenectady County (Giardino,J.), rendered September 24, 2009, convicting defendant upon his plea of guilty of the crimes ofdriving while intoxicated (two counts) and aggravated unlicensed operation of a motor vehicle inthe first degree.
Defendant was stopped at a sobriety checkpoint in the City of Schenectady, SchenectadyCounty. He was observed to be intoxicated, was arrested and later indicted on two counts ofdriving while intoxicated and one count of aggravated unlicensed operation of a motor vehicle inthe first degree. He then moved to suppress all evidence obtained as a result of the checkpoint,alleging that it had been conducted in a constitutionally improper manner. Finding that defendanthad not stated sufficient factual grounds upon which to grant a hearing, County Court (Drago, J.)denied the motion. Defendant then renewed his motion and, when County Court (Giardino, J.)denied it, he pleaded guilty to the indictment and was sentenced to a term of imprisonment of 1to 3 years to run concurrently with a sentence on an unrelated conviction that he was alreadyserving. Defendant appeals.
We disagree with defendant's argument that his motions were improperly denied. Pursuant toCPL 710.60 (3) (b), a motion to suppress may be summarily denied if, as applicable [*2]here, "[t]he sworn allegations of fact do not as a matter of lawsupport the ground alleged" (see People v Mendoza, 82 NY2d 415, 421 [1993]; People v McNair, 28 AD3d 800,800 [2006]). The sufficiency of defendant's factual allegations will be determined with referenceto the face of the pleadings, the context of the motion and defendant's access to information(see People v Mendoza, 82 NY2d at 422; People v Davis, 45 AD3d 1039, 1041 [2007], lv denied 10NY3d 763 [2008]).
In support of defendant's initial motion, defense counsel alleged in a conclusory fashion thatthe arresting officer conducted the checkpoint "without . . . uniform procedures thatprovide little discretion to the operating personnel, operated such roadblock with little or noprecautions as to safety, lighting or fair warning of its existence, and impermissibly intrudedupon the privacy of approaching motorists." Defense counsel also cited the lack of any writtenguidelines from the Schenectady Police Department for roadblocks as well as an administrativedetermination by the Department of Motor Vehicles finding that a lawful arrest had not beenestablished in connection with a different motorist stopped by a different officer at the samelocation 4½ hours after defendant's arrest. The administrative determination, however, doesnot give rise to any factual issues concerning the operation of the checkpoint at the timedefendant was stopped. Nor will a sobriety checkpoint be rendered invalid by the lack of writtenguidelines or the failure to stop every vehicle (see People v Scott, 63 NY2d 518, 526[1984]; People v Ingle, 36 NY2d 413, 416 [1975]; People v Sinzheimer, 15 AD3d 732, 734 [2005], lv denied5 NY3d 794 [2005]). We agree with County Court (Drago, J.) that these assertions do notprovide sufficient factual information to conclude that the checkpoint was conducted in anunconstitutional manner (see People vJenkins, 64 AD3d 993, 994-995 [2009]; People v Gadsden, 273 AD2d 701, 702[2000], lv denied 95 NY2d 934 [2000]). Nor do we find any abuse of discretion inCounty Court's (Giardino, J.) denial of defendant's renewal motion, as defendant failed to offerany new facts that could not have been raised in the initial motion (see CPL 710.40 [4];People v Long, 36 AD3d 132,135 [2006], affd 8 NY3d 1014 [2007]).
Although the People claim that defendant's remaining arguments concerning thevoluntariness of the plea, the effectiveness of counsel and the appropriateness of the sentence arebarred by defendant's waiver of his right to appeal, the record does not reflect that he actuallywaived this right, orally or in writing (see People v Headspeth, 78 AD3d 1418, 1419 [2010]; People v Moran, 69 AD3d 1055,1056 [2010]). While defendant did not waive his right to appeal, however, his challenge to thevoluntariness of the plea and his claim of ineffective assistance of counsel are unpreserved, as hedid not move to withdraw the plea or vacate the judgment of conviction (see People v Harris, 82 AD3d1449 [2011]; People v Stevens,80 AD3d 791, 792 [2011], lv denied 16 NY3d 900 [2011]; People v Spears, 78 AD3d 1380,1380 [2010]). Finally, in light of defendant's extensive criminal history, which includes two priorconvictions for driving while intoxicated, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence (see People v McPherson, 76 AD3d 1117 [2010]; People v Kelly, 71 AD3d 1292,1292 [2010]).
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.