| People v King |
| 2016 NY Slip Op 01876 [137 AD3d 1424] |
| March 17, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBrian L. King, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Garry, J.P. Appeal from a judgment of the County Court of Clinton County (Ryan,J.), rendered January 29, 2014, convicting defendant upon his plea of guilty of the crimeof driving while intoxicated (two counts) and the traffic infraction of failure to complywith a lawful order of a person empowered to regulate traffic.
On April 5, 2013 at approximately 7:00 p.m., members of the Ellenburg Depot FireDepartment responded to an emergency dispatch call and set up a roadblock in order todivert traffic around the site of a tractor trailer that had jackknifed, blocking the roadahead. Stewart Seguin, the third assistant fire chief in charge of the roadblock who wason fire police duty, parked a truck with its red roof lights and grill lights flashing in theincoming lane, and members of the department stood in the center of the road to directtraffic. Defendant approached in a gold sports utility vehicle (hereinafter SUV) anddrove around the roadblock into the oncoming lane, which was not completely blocked,reportedly ignoring calls to stop and nearly striking a firefighter flagperson. Seguinapproached defendant's stopped SUV, which could not proceed past the tractor trailer,spoke with defendant, and then reported to a state trooper assigned to the accident sitethat defendant had driven through the roadblock and may be intoxicated; Seguin thenpointed out defendant's SUV to the state trooper. Defendant turned his SUV around anddrove back through the roadblock. The state trooper followed and, upon stoppingdefendant, detected the odor of alcohol and administered field sobriety tests. Defendantwas placed under arrest for the traffic infraction of failure to obey a person authorized toregulate traffic in violation of Vehicle and Traffic Law§ 1102.
[*2] Defendant was laterindicted on two felony counts of driving while intoxicated and for the traffic infraction.Following a suppression hearing, County Court concluded that the state trooper hadlawfully stopped defendant's SUV and, therefore, denied defendant's motion to suppressthe evidence and his statements to police. Defendant thereafter pleaded guilty as chargedin the indictment with no sentencing promise. County Court imposed concurrent prisonterms of 1
Initially, as defendant did not waive his right to appeal, his challenge to the denial ofhis suppression motion survives his guilty plea and, since he entered a guilty pleathereafter, harmless error analysis is inapplicable (see CPL 710.70 [2]; People v Henry, 133 AD3d1085, 1087 [2015]). Turning to the merits, a decision by police to stop a vehicle isreasonable when they have probable cause to believe that the driver committed a trafficviolation (see People vGuthrie, 25 NY3d 130, 133 [2015]; People v Robinson, 97 NY2d 341,349 [2001]; People vWeishaupt, 118 AD3d 1100, 1102 [2014]; People v Brock, 107 AD3d 1025, 1026 [2013], lvdenied 21 NY3d 1072 [2013]). Defendant argues that the state trooper did notpossess probable cause to stop his vehicle because he did not personally observe himcommit a traffic infraction. We disagree. Seguin, a volunteer firefighter on fire policeduty, was assigned by the fire chief in charge to close the intersection and set up theroadblock and, as such, was "duly empowered to regulate traffic" under Vehicle andTraffic Law § 1102 (see People v Loren, 4 NY3d 411, 413 [2005]). At the veryleast, Seguin was a citizen informant who was presumed to be reliable and his basis ofknowledge was clear to the state trooper, as Seguin had personally observed defendantdisobey orders to stop and drive through the roadblock into the oncoming lane (seePeople v Hetrick, 80 NY2d 344, 348-349 [1992]; People v Gibson, 117 AD3d1317, 1321 [2014], affd 24 NY3d 1125 [2015]; People v Hoffman,283 AD2d 928, 928 [2001], lv denied 93 NY2d 874 [1999]). In addition, Seguinpointed out defendant's SUV to the state trooper, who personally observed that it waspast the roadblock, establishing that defendant had driven around it. According deferenceto the suppression court's factual determinations and decision to credit the testimony ofSeguin and the state trooper over defendant's inconsistent account (see People vWeishaupt, 118 AD3d at 1102), we find that the state trooper had probable cause tobelieve that defendant had committed a traffic violation and that his stop of defendant'sSUV was lawful. Accordingly, County Court properly denied defendant's motion tosuppress.
Egan Jr., Lynch, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.