Pretrial motion (CPL §255.10) by the defendant for dismissal of the indictment, inspection of the grand jury minutes, and for suppression of certain statements allegedly made by defendant to law enforcement.

The defendant is charged by a five-count indictment with two counts of driving while intoxicated (Vehicle and Traffic Law §1192[2] and [3]), both class E felonies, as well as the traffic infractions of moving from lane unsafely (Vehicle and Traffic Law §1128[d]) and consumption or [*2]possession of alcohol in a motor vehicle (Vehicle and Traffic Law §1227[1]), and unlawful possession of marijuana (Penal Law §221.05), a violation. The charges arise out of an incident alleged to have occurred on February 15, 2008 in the Town of Moriah, Essex County, New York, as the defendant allegedly operated a 1991 Ford motor vehicle on Joyce Road, a public highway.

The defendant's requests for an Ingle hearing (People v. Ingle, 36 NY2d 413, 369 NYS2d 67, 330 NE2d 39), to determine the validity of the stop of his vehicle, and for a Huntley hearing (People v. Huntley, 15 NY2d 22, 255 NYS2d 838, 204 NE2d 179) to determine the voluntariness of any statements allegedly made by the defendant to the arresting state trooper, were granted and the hearings were held simultaneously on October 20, 2008. Testifying at the hearing were the arresting state trooper, Ismael Ramos, and the defendant. Ramos testified that he initiated a stop of the defendant's vehicle after observing the passenger-side tires cross the white "boundary" or "fog" line separating the travel lane from the shoulder for a total of two or three seconds. Although the defendant disputed the existence of a painted white line in the area of the stop, the Court finds Ramos' testimony credible.

The question presented is whether the one-time operation of a motor vehicle to the right of the "fog" line constitutes a violation of Vehicle and Traffic Law §1128(d). Ramos acknowledged that the sole basis for stopping the defendant's vehicle was this two or three second event for which he charged the defendant with violating §1128(d). The defendant concedes that if the stop was lawful, there is no basis for the suppression of evidence, including but not limited to the breath test results and the defendant's statements.

"[A] motorist has the general right to be free from arbitrary State intrusion on his freedom of movement even in an automobile (see Brinegar v. United States, 338 US 160, 177, 69 SCt 1302, 1311, 93 LEd 1879 ('the citizen who has given no good cause for believing he is engaged in (criminal) activity is entitled to proceed on his way without interference'); see, also, Terry v. Ohio, 392 US 1, 15, 21, 88 SCt 1868, 1876, 1879, 20 LEd2d 889, Supra)." (People v. Ingle, 36 NY2d 413, 419, 369 NYS2d 67, 73, 330 NE2d 39, 43). However,"where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate article I, §12 of the New York State Constitution. In making that determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant." (People v. Robinson, 97 NY2d 341, 349, 741 NYS2d 147, 151, 767 NE2d 638, 642; see also Whren v. United States, 517 US 806, 116 SCt 1769, 135 LEd2d 89 [where police officer has probable cause to temporarily detain a person for a traffic violation, that seizure does not violate Fourth Amendment to the United States Constitution]).

Vehicle and Traffic Law §1128(d) provides that "[when official markings are in place indicating those portions of any roadway where crossing such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive across such markings." In People v. Shulman, 14 Misc 3d 129A, 836 NYS2d 488 [Table], 2006 WL 3858337, 2006 NY Slip Op. 52508[U]), the Appellate Term of the Supreme Court, Second Department, held [*3]that two instances of a vehicle crossing "a solid white line which separated his lane of traffic from the paved shoulder of the road" was not a traffic infraction. "The crossing of a solid white line is discouraged, but not prohibited (see 17 NYCRR §§261.2, 261.5[c]; § 261.7[a]; People v Hollinger, 2002 NY Slip Op 40485[U] [App Term, 9th & 10th Jud Dists]) and, thus, such a marking does not constitute an indication that crossing same would be especially hazardous' (Vehicle and Traffic Law §1128[d])." (Id.). The cited provisions of the New York Code of Rules and Regulations were, at the time of Shulman, contained in Chapter V and commonly known as the New York State Manual of Uniform Traffic Control Devices. Effective September 13, 2007, the entire chapter was replaced by the New York State Supplement to the National Manual on Uniform Traffic Control Devices for Streets and highways - 2003 Edition. As of the date of the defendant's arrest, the only provision regarding white line pavement markings states as follows:

"White barrier markings are used where lane changing is legally prohibited by official regulation. An order, ordinance, rule, or regulation establishing specific lane changing prohibitions for a particular section of roadway is necessary for no-lane-changing markings to be official markings,' as referred to in Section 1128(d) of the Vehicle & Traffic Law." (17 NYCRR §3B.04)

The cases relied upon by the prosecution (People v. Ogden, 250 AD2d 1001, 673 NYS2d 249; People v. Walters, 213 AD2d 810, 623 NYS2d 396; People v. Sundquist, 175 AD2d 319, 572 NYS2d 410) are unavailing. In all three cases, the offending motorists operated their respective vehicles over or across the double yellow line separating the lanes of vehicular travel, a clear violation of Vehicle and Traffic Law §1128(a) and (d). The only case tending to support the legality of the stop is People v. Parris, 26 AD3d 393, 809 NYS2d 176,leave to appeal denied 6 NY3d 851, 816 NYS2d 757, 849 NE2d 980. There, the stop of a vehicle was upheld where the state trooper observed the defendant's vehicle twice cross onto the shoulder of the highway "within a short distance" and the defendant was arrested for driving on the shoulder of the roadway in violation of Vehicle and Traffic Law §1131 as well as for violating Vehicle and Traffic Law §1128(d).

Under the circumstances here, a single instance of crossing the "boundary" or "fog" line on Joyce Road for a period not exceeding three seconds in duration, without more, is not a traffic infraction in violation of Vehicle and Traffic Law §1128(d), and therefore cannot form the basis for a valid stop of the defendant's vehicle. The defendant's motion to suppress is in all respects granted, all fruits of the stop are hereby suppressed and precluded from use at the trial, and the indictment is dismissed in its entirety.

IT IS SO ORDERED.

ENTER [*4]

__________________________________

Richard B. Meyer

J.C.C.