The opinion of the court was delivered by: Gold, S., U. S. Magistrate Judge:
REPORT AND RECOMMENDATION
Defendant Christopher Davidson was arrested on May 28, 2010 after the police stopped a car driven by his nephew and in which he was a passenger ("defendant's car"). Defendant, a convicted felon, was found by police officers to be in possession of a gun. According to the government, the police properly stopped defendant's car both because it had been standing in a bus stop and because its brake lights were not working properly.
On October 1, 2011, Davidson filed a motion seeking, among other things, suppression of the gun seized from him at the time of his arrest. Docket Entry 37. United States District Judge Brian M. Cogan referred defendant's motion to me for report and recommendation on July 9, 2010. I held a hearing with respect to defendant's motion on December 21, 2010. Tr. of 12/21/10 ("Tr."), Docket Entry 52-1. I issued a report orally from the bench at the conclusion of the hearing recommending that each aspect of defendant's motion be denied. Tr. 178-87. With respect to defendant's motion to suppress the gun found in his possession, I concluded that the police lawfully stopped defendant's car because its brake lights were not working properly. I rejected the prosecution's alternative argument that the car was improperly standing in a bus stop.
Defendant now moves for reconsideration of my recommendation that his motion to suppress be denied. Docket Entry 48. The government opposes defendant's motion and seeks reconsideration of my conclusion that defendant's car was not improperly standing in a bus stop. Docket Entry 52. For the reasons stated below, I decline to change either my conclusion that the car was not improperly standing in a bus stop or my conclusion that the police officers properly stopped defendant's car because its brake lights were not in good working order.
The pertinent facts are not in dispute. On May 28, 2010, Sergeant Kenneth Zepherin and Police Officer Paul Viar were on duty and riding together in an unmarked police car. At about 6:45 p.m., the officers were stopped at a red light on New Lots Avenue at the intersection of Pennsylvania Avenue in Brooklyn. Tr. 121. New Lots Avenue has only one lane of traffic moving in the direction the police were heading. While waiting for the light to change, the officers noticed defendant's car pull up on their right side and stop for the red light in a bus stop. Tr. 121-22. A sign marking the bus stop indicates that no standing is permitted there. Tr. 16; Gov't Ex. 2.
Within moments, the light turned green and defendant's car turned right onto Pennsylvania Avenue. Tr. 123. The police followed. Officer Viar then noticed that the "inner left brake light" was not operating. Tr. 18, 126. Officer Viar explained that each of the two brake lights on the defendant's car has two bulbs, and that the interior bulb of the brake light on the driver's side did not light up when the brakes were applied. Tr. 19. The officers wrote a ticket for the brake light violation but did not issue one for standing in a bus stop. Tr. 65-66.
The police stopped defendant's car after following it for several blocks. Tr. 21, 23. The events leading to the discovery of a gun in defendant's possession followed. Those events are not recounted here because they are not pertinent to defendant's motion for reconsideration.
A. The Standing Violation
As indicated above, Sergeant Zepherin and Office Viar observed defendant's car pull up on their right and stop in an area designated as a bus stop with standing prohibited. Defendant's car waited there for the traffic light to turn green, and then proceeded to make a right turn. Defendant's car could have been in the "no standing" zone only very briefly because Sergeant Zepherin testified that he and Officer Viar were stopped at the intersection only "momentarily." Tr. 123. The question posed by these facts is whether it is a traffic violation for a driver who intends to make a right turn to pull out of the lane of moving traffic, enter a bus stop where standing is prohibited, and wait for the light to turn green.
At the hearing, I rejected the government's contention that defendant's car was unlawfully standing in a bus stop largely as a matter of common sense. It simply seems illogical to preclude a driver from pulling into the right-most portion of the roadway under the circumstances presented here. A driver waiting in a bus stop for a red light to turn green does not significantly delay the progress of a bus because, even if the bus stop were not blocked and the bus could enter it, the bus would still have to wait for the same light to turn green before proceeding through the intersection. More importantly, the government's construction of the rule would pose a serious safety hazard: a driver who did not pull to the right before turning would run the risk of making a right turn in front of a bus traveling straight ahead, or in the alternative would delay the progress through the intersection of all traffic behind him until the bus passed.
The government, quite properly, directs my attention to the governing New York City traffic rules. Those rules provide that no person may stand in an officially designated and appropriately posted bus stop except temporarily "for the purpose of expeditiously receiving and discharging passengers." 34 RCNY 4-08(b)(3). Standing is defined as the stopping of a vehicle other than temporarily to receive or ...