Opinion
No. 2012KN024855.
2012-10-4
The PEOPLE of the State of New York, Plaintiff, v. Wilfegher DUMAY, Defendant.
Charles J. Hynes, District Attorney, Kings County, by Roger Yu, Esq., Assistant District Attorney, for the People. Stephen M. Zeitlin, Esq., for the Defendant.
Charles J. Hynes, District Attorney, Kings County, by Roger Yu, Esq., Assistant District Attorney, for the People. Stephen M. Zeitlin, Esq., for the Defendant.
JOHN H. WILSON, J.
Defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL Sec. 511.1) an unclassified misdemeanor.
By motion dated May 30, 2012, Defendant seeks dismissal of the Criminal Court Complaint pursuant to CPL Sec. 100.40, asserting that the People have failed to “establish reasonable suspicion for a traffic stop pursuant to CPL Sec. 140.50.” In the alternative, Defendant seeks suppression of any evidence obtained as a result of the illegal stop of his vehicle, or again in the alternative, a hearing “to determine whether probable cause to stop the Defendant's vehicle existed.”
The Court has reviewed the Court file, Defendant's motion, the People's Response dated August 30, 2012.
Defendant motion for dismissal is denied. However, for the reasons stated below, under the particular facts of this case, Defendant's motion is granted to the extent of ordering a hearing pursuant to People v. Sajous, 180 Misc.2d 693, 695 N.Y.S.2d 471 (App Term, 2d Dept, 1999) and People v. Moya, 4 Misc.3d 101, 782 N.Y.S.2d 499 (App Term, 2d and 11th Dist, 2004).
STATEMENT OF THE FACTS
Defendant was stopped by Police Officer Christopher Breidenbach on February 25, 2012, at 4:06 PM, at the intersection of Pitkin Avenue and Grafton Street, Brooklyn, New York. The arresting officer's review of Defendant's Department of Motor Vehicles records indicated that the Defendant was operating a motor vehicle while his license to do so is under suspension.
ARGUMENTS OF THE PARTIES
The People assert that the arresting officer “stopped (Defendant's) vehicle for ... excessive window tints.” See People's Response dated August 30, 2012, p 2, para 6. For his part, Defendant asserts that “no window tint test was performed by the officer on the scene, and the Defendant was driving a vehicle with factory-installed windows.” See, Defendant's motion dated May 30, 2012, p 5, para 10. On this basis, “Defendant was effectively seized without any probable cause whatsoever.” See, Defendant's motion dated May 30, 2012, p 5, para 10.
“(T)he People contend that there was probable cause for the traffic stop.” See People's Response dated August 30, 2012, p 2, para 19.
THE MOTION TO DISMISS IS DENIED; HOWEVER, DEFENDANT'S REQUEST FOR A SUPPRESSION HEARING IS GRANTED
As the People correctly point out, “CPL Sec, 100.40 does not apply to (a) simplified traffic information.” See, People's Response dated August 30, 2012, citing People v. DeRojas, 180 Misc.2d 690, 691, 693 N.Y.S.2d 404 (App Term, 2d Dept., 1999) (“It is statutorily dictated that a simplified traffic information has different, and lesser, requirements for facial sufficiency than a misdemeanor information.”) Therefore, Defendant's motion for dismissal is denied.
In the alternative, Defendant had asked for suppression of his Department of Motor Vehicle's record (hereinafter, “DMV abstract”), or a hearing pursuant to People v. Johnson, 134 Misc.2d 474, 476–477, 511 N.Y.S.2d 773 (Crim Ct, Qns Cty, 1987). Johnson, however, is not applicable to the instant matter. While Johnson did state that “a stop without probable cause constitutes a legal basis for the suppression of physical evidence,” this finding was made in the context of determining the “legal basis for the suppression of a breathalyzer test result.” Johnson has not been applied to cases involving a request to suppress a DMV abstract.
Instead, Defendant's motion is granted to the extent of ordering a hearing pursuant to the Appellate Term decisions in Sajous and. Moya.
In Sajous, the lower court had ordered a hearing pursuant to People v. Dunaway, 442 U.S. 200, 99 S Ct 2248, 60 L Ed2d 824 (1979) and Mapp v. Ohio, 367 U.S. 643, 81 S Ct 1684, 6 L Ed2d 1081 (1961). The People argued, and the Appellate Term agreed that “defendant had no standing to seek suppression of the DMV abstract ... (since) ... Defendant has not established a legitimate expectation of privacy in the DMV file searched.” 180 Misc.2d at 694, citing People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502 (1996). See, also, Moya, 4 Misc.3d at 102(“(D)efendant failed to establish a privacy expectation in his DMV abstract, a public record compiled independently of the police conduct challenged here ... (a)ccordingly, we reaffirm our determination in People v. Sajous (citation omitted) that absent a cognizable privacy interest in DMV records, a defendant lacks standing to demand their suppression.”)
In Moya, however, the Appellate Term noted that they “did not reach the issue of whether the records would be admissible in the event of a Fourth Amendment violation since the lawfulness of the stop was conceded.” 4 Misc.3d at 102.
Unlike the defendant in Moya, this Defendant asserts a Fourth Amendment violation and seeks to contest the facts alleged by the People which led to the stop of his vehicle. As noted above, the People assert that the arresting officer “stopped (Defendant's) vehicle for ... excessive window tints.” See People's Response dated August 30, 2012, p 2, para 6. For his part, Defendant asserts that “no window tint test was performed by the officer on the scene, and the Defendant was driving a vehicle with factory-installed windows.” See, Defendant's motion dated May 30, 2012, p 5, para 10.
Therefore, under the specific circumstances of this case, a hearing is ordered, pursuant to Sajous and Moya, at which the parties are directed to present evidence regarding the issue enumerated above.
This shall constitute the order of the Court.