                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 17, 2016                    107019
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

BRIAN L. KING,
                    Appellant.
________________________________


Calendar Date:   February 11, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


     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 crime of driving while
intoxicated (two counts) and the traffic infraction of failure to
comply with 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 Fire Department responded to an emergency
dispatch call and set up a roadblock in order to divert traffic
around the site of a tractor trailer that had jackknifed,
blocking the road ahead. Stewart Seguin, the third assistant
fire chief in charge of the roadblock who was on fire police
duty, parked a truck with its red roof lights and grill lights
                              -2-                107019

flashing in the incoming lane, and members of the department
stood in the center of the road to direct traffic. Defendant
approached in a gold sports utility vehicle (hereinafter SUV) and
drove around the roadblock into the oncoming lane, which was not
completely blocked, reportedly ignoring calls to stop and nearly
striking a firefighter flagperson. Seguin approached 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 site that defendant had driven through
the roadblock and may be intoxicated; Seguin then pointed out
defendant's SUV to the state trooper. Defendant turned his SUV
around and drove back through the roadblock. The state trooper
followed and, upon stopping defendant, detected the odor of
alcohol and administered field sobriety tests. Defendant was
placed under arrest for the traffic infraction of failure to obey
a person authorized to regulate traffic in violation of Vehicle
and Traffic Law § 1102.

      Defendant was later indicted on two felony counts of
driving while intoxicated and for the traffic infraction.
Following a suppression hearing, County Court concluded that the
state trooper had lawfully stopped defendant's SUV and,
therefore, denied defendant's motion to suppress the evidence and
his statements to police. Defendant thereafter pleaded guilty as
charged in the indictment with no sentencing promise. County
Court imposed concurrent prison terms of 1a to 4 years on the
driving while intoxicated convictions, followed by a three-year
conditional discharge, with fines of $2,100 and surcharges.
Defendant appeals, solely challenging that part of County Court's
suppression ruling holding that the state trooper had lawfully
stopped his SUV.

      Initially, as defendant did not waive his right to appeal,
his challenge to the denial of his suppression motion survives
his guilty plea and, since he entered a guilty plea thereafter,
harmless error analysis is inapplicable (see CPL 710.70 [2];
People v Henry, 133 AD3d 1085, 1087 [2015]). Turning to the
merits, a decision by police to stop a vehicle is reasonable when
they have probable cause to believe that the driver committed a
traffic violation (see People v Guthrie, 25 NY3d 130, 133 [2015];
People v Robinson, 97 NY2d 341, 349 [2001]; People v Weishaupt,
                              -3-                107019

118 AD3d 1100, 1102 [2014]; People v Brock, 107 AD3d 1025, 1026
[2013], lv denied 21 NY3d 1072 [2013]). Defendant argues that
the state trooper did not possess probable cause to stop his
vehicle because he did not personally observe him commit a
traffic infraction. We disagree. Seguin, a volunteer
firefighter on fire police duty, was assigned by the fire chief
in charge to close the intersection and set up the roadblock and,
as such, was "duly empowered to regulate traffic" under Vehicle
and Traffic Law § 1102 (see People v Loren, 4 NY3d 411, 413
[2005]). At the very least, Seguin was a citizen informant who
was presumed to be reliable and his basis of knowledge was clear
to the state trooper, as Seguin had personally observed defendant
disobey orders to stop and drive through the roadblock into the
oncoming lane (see People v Hetrick, 80 NY2d 344, 348-349 [1992];
People v Gibson, 117 AD3d 1317, 1321 [2014], affd 24 NY3d 1125
[2015]; People v Hoffman, 283 AD2d 928, 928 [2001], lv denied 93
NY2d 874 [1999], cert denied 528 US 683 [1999]). In addition,
Seguin pointed out defendant's SUV to the state trooper, who
personally observed that it was past the roadblock, establishing
that defendant had driven around it. According deference to the
suppression court's factual determinations and decision to credit
the testimony of Seguin and the state trooper over defendant's
inconsistent account (see People v Weishaupt, 118 AD3d at 1102),
we find that the state trooper had probable cause to believe that
defendant had committed a traffic violation and that his stop of
defendant's SUV was lawful. Accordingly, County Court properly
denied defendant's motion to suppress.

     Egan Jr., Lynch, Devine and Clark, JJ., concur.
                        -4-                  107019

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
