Appeal from an order of the Justice Court of the Town of Southampton, Suffolk County (Andrea H. Schiavoni, J.), dated May 13, 2009. The order implicitly granted the branch of defendant's omnibus motion seeking the suppression of evidence and dismissed the accusatory instruments.

ORDERED that the order is modified by vacating the provision dismissing the accusatory instruments; as so modified, the order is affirmed, the accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings.

Defendant was charged with violating subdivision (a) of Vehicle and Traffic Law § 1201 ("Stopping, standing, or parking outside of business or residence districts"), Vehicle and Traffic Law § 1192 (2) ("Driving while intoxicated; per se"), and Vehicle and Traffic Law § 1192 (3) ("Driving while intoxicated"). He filed an omnibus motion seeking, among other things, the suppression of all evidence obtained as a result of an encounter between him and a state trooper. In their affirmation in opposition to the omnibus motion, the People contended that the sworn allegations in support of the omnibus motion were insufficient to warrant the holding of a hearing. The Justice Court ordered a suppression hearing, observing, in its decision, that "the lack of a sworn statement is not fatal to the defendant's motions to suppress statements and evidence." At the hearing, the trooper testified that, at about 2:15 A.M. on the day in question, he saw defendant stopped in a traffic lane. The trooper "put on [his] lights and initiated a traffic stop." He "pulled behind [defendant], stopped, got out, asked [defendant] to pull over and then moved [his own] car so [they] were off the road." He "approached [defendant] and asked him for his license and registration," which defendant produced. He then "asked why [defendant] was stopping in the lane"; defendant responded that a passenger was getting out. The trooper "felt that [to be] an awkward location to let people out . . ." The trooper then detected the odor of an alcoholic beverage. Defendant was arrested after a brief exchange between them and the trooper's determination that defendant had failed to successfully perform field sobriety tests.

Vehicle and Traffic Law § 1201 (a) does not prohibit a motorist from stopping a vehicle within "a business or residence district." On cross-examination at the hearing, the trooper [*2]acknowledged that the spot where he had observed defendant's car stopped was "a residential or business district." In an order dated May 13, 2009, the Justice Court implicitly granted the branch of defendant's omnibus motion seeking the suppression of the evidence in question and dismissed the accusatory instruments. The court relied on Matter of Byer v Jackson (241 AD2d 943, 944-945 [1997]), in which the Appellate Division had held that "[w]here the officer's belief [that the driver has violated the Vehicle and Traffic Law] is based on an erroneous interpretation of law, the stop is illegal at the outset . . ."

The People now argue that the supporting allegations of defendant's omnibus motion were insufficient to require a suppression hearing (an argument that we do not reach in light of the fact that the hearing has already been held [see People v Miller, 17 AD3d 708, 709 n (2005)]) and that the hearing evidence did not justify the resultant order. With respect to this latter argument, the hearing evidence established that the trooper's belief that defendant had violated Vehicle and Traffic Law § 1201 (a) was based on the trooper's lack of awareness that the subdivision applies only to stops "outside of a business or residence district." The Justice Court correctly concluded that, because the trooper's belief that defendant had violated the subdivision rested on "an erroneous interpretation of law" (Matter of Byer v Jackson, 241 AD2d at 945), the belief could not form a valid predicate for the encounter between the trooper and defendant (see also People v Smith, 1 AD3d 965, 965 [2003]; see generally People v Gonzalez, 88 NY2d 289, 295 [1996]; cf. People v Estrella, 10 NY3d 945 [2008]). Moreover, although the evidence established a predicate for a Level 1 "initial encounter" (People v De Bour, 40 NY2d 210, 215 [1976]) between the trooper and defendant (see People v Allen, 15 AD3d 933 [2005]; People v Blajeski, 125 AD2d 582 [1986]; see generally People v Hollman, 79 NY2d 181, 184 [1992]), the "initial encounter" here was of a higher level (see People v Spencer, 84 NY2d 749, 754 [1995] ["consensual characteristics . . . mark permissible first level intrusions "]; see also People v May, 81 NY2d 725 [1992]; People v Harrison, 57 NY2d 470 [1982]; cf. People v Ocasio, 85 NY2d 982 [1985]; People v Thomas, 19 AD3d 32 [2005]), and the hearing evidence did not establish a predicate for it (see generally People v Hollman, 79 NY2d at 184-185). Police action must be "justified at its inception" (People v Wheeler, 2 NY3d 370, 374 [2004] [internal quotation marks and citation omitted]; see People v De Bour, 40 NY2d at 215). Thus, the evidence was correctly suppressed because the encounter between the trooper and defendant was not justified from its inception.

To the extent that the People argue that the trooper's actions were justifiable as safety measures, this claim was not advanced by the People in the Justice Court, and is therefore not preserved. We decline to reach it in the interest of justice, particularly since the relevant facts were not fully developed at the suppression hearing. The Justice Court could not, however, order dismissal as a consequence of suppression (see People v Asher, 16 Misc 3d 89, 90-91 [App Term, 9th & 10th Jud Dists 2007]; People v Davidson, 9 Misc 3d 131[A], 2005 NY Slip Op 51593[U] [App Term, 9th & 10th Jud Dists 2005]), and defendant may not, on this appeal by the People, seek affirmance of the dismissal on the alternative ground that it was warranted pursuant to CPL 170.30 (f) (see People v Karp, 76 NY2d 1006, 1008-1009 [1990]; see also People v LaFontaine, 92 NY2d 470, 473-474 [1998]).

Accordingly, the order is modified by vacating the provision dismissing the accusatory instruments, the accusatory instruments are reinstated, and the matter is remitted to the Justice [*3]Court for further proceedings, if any, thereon.

Nicolai, P.J., Tanenbaum and Iannacci, JJ., concur.
Decision Date: February 04, 2011