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People v. Smith

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


November 13, 2009

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,
v.
LARRY SMITH, JR., RESPONDENT.

Appeal from an order of the Erie County Court (Michael F. Pietruszka, J.), entered February 11, 2009. The order granted defendant's motion to suppress certain evidence.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 6, 2010

It is hereby ordered that the order so appealed from is unanimously affirmed and the indictment is dismissed.

Memorandum

The People appeal from an order granting defendant's motion to suppress evidence seized as the result of a traffic stop. We conclude that County Court properly suppressed the evidence on the ground that the police officer made a mistake of law in stopping defendant's vehicle, which had in fact performed a legal pass on the right pursuant to Vehicle and Traffic Law § 1123 (a) (1) and (2). "Where the officer's belief is based on an erroneous interpretation of law, the stop is illegal at the outset and any further actions by the police as a direct result of the stop are illegal" (Matter of Byer v Jackson, 241 AD2d 943, 944-945 [1997]; see People v Smith, 1 AD3d 965 [2003]; see also People v Gonzalez, 88 NY2d 289, 295-296 [1996]).

Present---Hurlbutt, J.P., Centra, Fahey, Peradotto and Gorski, JJ.

20091113

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