Cite as: The People v. Rebecca P., CR12-0577, NYLJ 1202582170919, at *1 (City, Canandaigua, Decided December 17, 2012)

Judge Stephen D. Aronson

Decided: December 17, 2012


Plaintiff: Hon. R. Michael Tantillo, District Attorney, Kirk Hazen, Esq., Assistant District Attorney, of Counsel.

Defendant: Hon. Leanne Lapp, Public Defender, Jonathon Lorge, Esq., Assistant Public Defender, of Counsel.




Does a police officer have probable cause to stop a motorist for an unsafe start in violation of Vehicle and Traffic Law §1162 based solely on the squealing of tires when that motorist moved from a stopped position late at night at an intersection, without any evidence that the movement was done unsafely? Under the circumstances of this case, in the absence of any evidence that the movement was not made with reasonable safety, the police officer had no probable cause to stop the motorist.

The defendant was charged with driving while intoxicated in violation of Vehicle and Traffic Law §1192(2) and (3), along with making an unsafe start in violation of Vehicle and Traffic Law §1162. The defendant moved to suppress the initial stop on the grounds that the "stop was not founded upon articulable suspicion." The motion papers allege that "[a]s a result, any evidence




obtained by an unconstitutional stop and subsequent search is tainted and should be suppressed." The motion papers assert that "[i]n the alternative, defendant requests a hearing on the circumstances surrounding the motor vehicle stop and for the court to make findings of fact and determinations thereon." The people opposed this relief, and a Mapp/Dunaway hearing was held on December 10, 2012.

The sole witness at the hearing was the arresting officer, Canandaigua Police Officer R.C. The court found his testimony to be entirely credible and worthy of belief. Officer C. testified that on July 28, 2012, at about 1:15 am, he was sitting in a marked patrol vehicle at the intersection of South Main Street and Bristol Street in the City of Canandaigua waiting for a red light to turn green. The only other vehicle at this four-way intersection was a 2010 Hyundai waiting at the red light directly across the intersection. When the light changed colors, the Hyundai (later determined to be driven by the defendant) "squealed its tires" and "sped through the intersection." There were no pedestrians in the vicinity, there was no other traffic in the vicinity, the Hyundai did not "peel out" from the intersection, the squealing noise was not loud, the Hyundai did not exceed the speed limit as it sped past the officer through the intersection, the Hyundai stayed in its own lane of traffic, and there was no evidence that the movement of the Hyundai was not reasonably safe. Officer C. testified that a civilian standing to his left raised his arm(s) and pointed to the Hyundai; this fact bears no significance to this decision.

Under Vehicle and Traffic Law §1162: "No person shall move a vehicle which is stopped, standing, or parked unless and until such movement can be made with reasonable safety." The credible evidence here shows no violation of this traffic law. McDonell v. New York State Department of Motor Vehicles, 77AD3d 1379 (4th Dept 2010); cf. People v. Bielkiewicz, 55 Misc 2d 666 (County Ct, Saratoga County 1967). Thus, the stop of the defendant's vehicle was based on a mistake of law. When a stop of a defendant's vehicle is based on a mistake of law, the stop is illegal at the outset, and any further police actions are illegal. People v. Rose, 67 AD3d 1447 (4th Dept 2009); People v. Allen, 89 AD3d 742 (2d Dept 2011).

Accordingly, the charges against the defendant must be dismissed.