People v. Gordon

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People v. Gordon

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-1663 Rel

Case Date: 12/28/2007

Preview:FIFTH DIVISION December 28, 2007

No. 1-06-1663 ) ) ) ) ) ) ) ) ) ) )

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK GORDON, Defendant-Appellant.

Appeal from the Circuit Court of Cook County

Honorable Garritt E. Howard, Judge Presiding.

JUSTICE O'MARA FROSSARD delivered the opinion of the court: Defendant, Patrick Gordon after a bench trial was convicted of three counts of aggravated driving under the influence of alcohol, aggravated possession of a stolen motor vehicle, felony driving while his license was suspended or revoked and aggravated fleeing or attempting to elude the police. Defendant was sentenced to 8 years in the Illinois State Penitentiary for aggravated possession of a stolen motor vehicle and 3 years concurrent on all the other felony convictions. Defendant appeals and contends as follows: (1) that the State did not prove defendant guilty beyond a reasonable doubt based on witness testimony and a horizontal gaze nystagmus (HGN) sobriety test; (2) the circuit court erred in admitting the HGN test without a proper foundation and without conducting a hearing to determine that the test is scientifically reliable pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (Frye hearing); (3) defendant is entitled to a credit of $1,744 toward the $1,000 DUI fine, the $1,000 DUI subsequent offense fine, and the $100 Trauma Fund fine; (4) the mittimus should

1-06-1663 reflect a conviction for misdemeanor, not felony aggravated fleeing or attempting to elude the police; and (5) the mittimus should be corrected to reflect that the three felony aggravated driving under the influence convictions should merge under the one act/one crime rule. We affirm. BACKGROUND On June 28, 2005, Bedford Hayes drove his car to work. Mr. Hayes parked his car in front of his place of work, put the keys in the car's ashtray, and left the car unlocked. When Mr. Hayes returned to his parking space around 12 p.m. that same day, he noticed that his vehicle was gone and immediately notified the Evanston police department. Mr. James DeClet was at his parent's house on June 28, 2005, in Skokie, Illinois, when he noticed defendant's vehicle. Mr. DeClet noticed that the defendant was driving erratically: first driving slowly, then accelerating quickly, and then stopping suddenly. Mr. DeClet decided to follow this vehicle and call 911 to report that defendant was possibly driving under the influence. Mr. DeClet was able to see in the front seat of defendant's car and testified that he believed that defendant was drunk because defendant's head was bobbing up and down and his eyes were bloodshot. Mr. DeClet then made a second call to 911 to report that defendant's car was zigzagging. Mr. DeClet also gave the 911 dispatcher the license plate number of the vehicle he was following and the dispatcher confirmed that the license plate number matched that of a vehicle that had been reported stolen earlier that day. Officer Panizo, a police officer for 4

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