People v Ilardi

[*1] People v Ilardi 2006 NY Slip Op 51769(U) [13 Misc 3d 1210(A)] Decided on September 20, 2006 Nassau Dist Ct DeStefano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 10, 2006; it will not be published in the printed Official Reports.

Decided on September 20, 2006
Nassau Dist Ct

The People of the State of New York, Plaintiff

against

Albert Ilardi, Defendant



NA 000584/04



Guido Gabriele, Assistant District Attorney, of counsel to Kathleen Rice, District Attorney, attorneys for Plaintiff, 99 Main Street, Hempstead, New York 11550, 516-572-2000; Perini & Hoerger, Esqs., attorneys for Defendant, 1770 Motor Parkway, Suite 300, Hauppauge, New York 11749, 516-232-2224.

Vito M. DeStefano, J.

DECISION AND ORDER AFTER HEARING

This criminal matter stems from charges arising out of the defendant's operation of a vehicle near the Nassau-Suffolk County border on December 26, 2003. At about 9:24 that evening, upon receiving a radio transmission, a state trooper began following the defendant's vehicle. A short time later, the trooper stopped the defendant's vehicle, and, after some interaction with the defendant, placed him under arrest.

The defendant was charged under DN 584/04, with violating sections 600.2, 1192 and 1193 of the Vehicle and Traffic Law. In a decision and order dated November 10, 2005, the court (Kluewer, J.), dismissed the charge of Leaving the Scene of An Incident Without Reporting (VTL 600.2) on the basis that the subject incident, to wit, an accident, occurred in Suffolk County. The court, inter alia, denied the branches of defendant's motion seeking dismissal of the remaining counts but on the issue of whether evidence should be suppressed as the product of an unlawful seizure ordered a hearing to determine whether the defendant's vehicle was lawfully stopped by state police. More particularly, the hearing was to address both the level of suspicion necessary to justify a vehicular stop, and, whether, in the instant case, that level was met.

On July 10, 2006, this court conducted a hearing, at which the People presented the testimony of State Trooper Kevin Reppenhagen.

The court holds that the level of suspicion necessary to justify stopping the defendant's vehicle was reasonable suspicion. Moreover, based on the evidence presented at the hearing, the court finds that the People met their burden.

Evidence Adduced At The Hearing

Trooper Reppenhagen testified that on December 26, 2003, he was assigned to traffic enforcement duty on the Southern State Parkway. At about 9:24 p.m., he received a radio transmission, excerpts of which follow: [*2] Dispatch (Sergeant):

We've got a possible erratic involvement, an accident with center median westbound by 38th and Stillwell.

*** Dispatch:They're approaching 34 at this time.

Just be advised that the accident occurred on Sunrise It's not our

Accident. The subject is chasing the vehicle on the Parkway.

* * * Trooper:41 Farmingdale * * * I'll be stationary at 32.Dispatch:Okay 41. It's a 2002 Ford, four-door tan, Boy Tom Boy 5493.Trooper:41 Farmingdale. If you are still on the phone with the complainant, just have the complainant turn the 4-ways on.Dispatch:Received.

They just passed you 41. Are you by 110?

It's a Crown Victoria being followed by Blue Protégé,

Trooper:Received.

Dispatch:They're in the left lane. Blue Protégé has his 4-ways on at this time.

* * * Dispatch:Now 41, put your lights on.

Trooper:Be advised they're on. Dispatch:Okay. They're at Exit 30. The guy in the blue Protégé says he sees lights. But, they're at 30. You're behind him.Trooper:Received.Dispatch:What's your location 41?Trooper:I'm just to the left of 30.[*3]Dispatch:Approaching 107. Still in left lane.

Okay. Blue Protégé is in the middle lane. The erratic is in the left lane.

41, Do you have that vehicle? Trooper:It's going to be a tan Crown Victoria.

Dispatch:Affirmative.

Trooper:That's affirmed. I'm stopping that vehicle now.

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According to Trooper Reppenhagen, when he heard the transmission, he "interpreted it as the vehicle was involved in an accident, whether it was a personal injury or property damage, and left the scene, was being followed by a witness or the other party involved" (Transcript dated July 10, 2006, at p.14). He later added that it was his "job to investigate whether there is an accident or isn't an accident, whether there's property damage or personal injury" (Id., at p.33).

The trooper also testified that he did, in fact, observe the Gold Crown Victoria described in the radio transmission in the area between exits 30 and 28, driving westbound on the Southern State Parkway, and also that it was being followed by a blue Protégé (Id., at p.15). The license plate on the Crown Victoria matched the description given on the radio. At the hearing, Trooper Reppenhagen identified the defendant as the person operating the Crown Victoria on December 26, 2003.

On cross examination, Trooper Reppenhagen testified that he followed the vehicle for one or two minutes before making the stop and that it was not being driven erratically, nor was it damaged (Id., at p.15). Prior to stopping the Crown Victoria, he did not speak to the complainant, he didn't know the complainant's identity or if the complainant was reliable or truthful (Id., at p. 24). He did, however, speak to the complainant after the stop.

Decision of the Court

The Applicable Legal Standard

As indicated, this case requires the court to determine the level of suspicion necessary to justify a vehicular stop by law enforcement officers.

In People v Robinson (97 NY2d 341 [2001]), the Court of Appeals adopted Whren v United States (517 US 806 [1996]), and held that a stop based on probable cause of a traffic violation was not invalid merely because the officer used the otherwise lawful stop as a pretext for a different investigative end. Stated differently, the Court held that the officer's subjective motivation in stopping the vehicle was not relevant where the stop was predicated on probable cause. [*4]

Contrary to the suggestion made by the defendant at the hearing (Transcript dated July 10, 2006, at p.35), neither Robinson, nor its progeny (i.e., People v Sluszka, 15 AD3d 421 [2d Dept 2005]), altered the long-standing rule that a police officer may stop a car if he has a reasonable suspicion that a suspect therein is committing, is about to commit or has committed a crime (2-19 New York Criminal Practice § 19.10 (3)).

Although the case law and treatises analyzing Robinson have not done so with exact uniformity, no authority can be cited for the proposition that where criminal activity is suspected Robinson abrogated the reasonable suspicion standard in favor of an elevated probable cause standard.

Significantly, cases subsequent to Robinson have held that vehicular stops based on reasonable suspicion of criminal activity are valid (e.g., People v Spencer, 16 AD3d 918 [3d Dept 2005] [stop based on reasonable suspicion of unlawful activity valid], lv denied 5 NY3d 770; People v Ballard, 16 AD3d 697 [2d Dept 2005] [stop of vehicle justified because there was reasonable suspicion of criminal activity by occupant], lv denied 5 NY3d 759; People v Corteux, 7 Misc 3d 1007A [County Court Lawrence County 2005] [The holding in Robinson is not inconsistent with the long line of precedent requiring reasonable suspicion to justify an investigative stop]).

New York Criminal Practice and New York Search & Seizure are in accord with this analysis. The more salient question, however, is whether Robinson (and, in the Federal context, Whren) elevated the level of suspicion necessary to stop a vehicle based on a mere traffic infraction. Notably, both treatises suggest that Robinson did, in fact, raise the level of suspicion necessary to stop vehicles based on violations of the Vehicle and Traffic Law, New York Search and Seizure adding the caveat that the probable cause standard enunciated in Robinson may only be applicable to pretext stops (1-5 New York Search & Seizure § 5.02 [1][a]):

In People v. Ingle, the New York Court of Appeals held that a police officer may not stop an automobile for a ''routine traffic check'' unless he reasonably suspects a violation of the Vehicle and Traffic Law. That quantum of evidence remained the standard for automobile traffic stops until the Court of Appeals, in 2001, addressed the issue of pretext automobile stops. As discussed later in this chapter, the Court, as a matter of state constitutional law, adopted Whren v. United States, in which the United States Supreme Court rejected the argument that pretext stops are unlawful. In People v. Robinson, the Court of Appeals held that an automobile stop is reasonable when an officer has probable cause to believe that an individual has violated the Vehicle and Traffic Law. In such cases, the motivation for the stop is irrelevant. (The standard for investigative stops * * * below, was not affected by Robinson.). Thus, it would appear that the quantum of information necessary for a Vehicle and Traffic stop, at least in pretext cases, has increased from reasonable suspicion to probable cause. It should be noted that the New York Court of Appeals has not specifically held that the threshold for traffic stops has changed, but this conclusion is implicit in the Court's use of the probable cause standard both in Robinson and in the subsequent case of People v. Wright. It remains to be seen whether the probable cause standard is limited to cases in which the facts are consistent with a pretext stop or whether it applies to all traffic stops.

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[2] Investigative Stops for Criminal Activity [a] Generally

The stop of an automobile constitutes a seizure, and an officer may stop a vehicle to investigate criminal activity when he has a reasonable suspicion that its occupants have been engaged, are presently engaged, or are about to engage in conduct in violation of the law.

The court notes that there is authority subsequent to Robinson tending to support the validity of vehicular stops based on reasonable suspicion that the driver had committed only a traffic infraction (People v Smith, 1 AD3d 965 [4th Dept 2003] ["[T]he People contend that Supreme Court erred in determining that the police lacked reasonable suspicion to stop defendant's vehicle * * *. We reject that contention. The lack of a licence plate on a vehicle will justify a stop of the vehicle for violation of [the] Vehicle and Traffic Law"]; People v Kalwiss, 6 Misc 3d 129A [Appellate Term Second Department 2005] ["It is well settled that police may stop a vehicle upon a reasonable suspicion that a violation of the Vehicle and Traffic Law has occurred"]; People v Prado, 2 Misc 3d 1002A [Supreme Court New York County 2004] [where officer seeks to stop vehicle solely to enforce traffic laws, reasonable suspicion standard applies]; see, also, Matter of Casalino Interior Demolition Corp., 29 AD3d 691 [2d Dept 2006] [citing People v Ingle, supra, and holding that in the absence of reasonable suspicion of a vehicle violation, a routine traffic check is permissible only when conducted in accordance with uniform, non-arbitrary, non-discriminatory manner]).

There is also authority which is arguably to the contrary. For example, in People v Sluszka (supra), the Appellate Division, Second Department described the standard applied by the County Court to traffic stops based on traffic infractions (reasonable suspicion) and then applied a probable cause standard (15 AD3d 421, 422-23):

At issue on appeal is the County Court's rejection of the People's contention that the stop of the station wagon was permissible based on the officers' probable cause that Carnes violated Vehicle and Traffic Law sec. 1210 when he left the Bronco unattended with its engine running [and then entered a station wagon, which proceeded to pull away]. The County Court held that "to justify a motor vehicle stop, the officer must possess a reasonable suspicion of a Vehicle and Traffic Law violation by the driver of the vehicle the officer seeks to stop, not the driver of some other vehicle."

"As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred," even if the underlying reason for the stop was to investigate another matter unrelated to the traffic violation (People v Robinson * * * ). Here, the issue is whether the decision to stop the station wagon was reasonable because the police had probable cause to believe that a passenger in that car had just committed a traffic infraction in a different vehicle, immediately prior to getting into the station wagon.

Additionally, in People v White (6 Misc 3d 1039A [County Court Cattaraugus County 2005], affd 27 AD3d 1181 [4th Dept 2006]), after the County Court rejected the defendant's contention that he had not been lawfully stopped (stating that it did not believe Robinson elevated the standard to effect a lawful stop), the Fourth Department affirmed, concluding that the stop of motor vehicle was justified inasmuch as there was probable cause to believe a traffic violation was committed and [*6]reasonable cause to believe a crime was committed.

It is this court's opinion that neither Sluszka nor White mandate a particular determination in the instant matter because they do not squarely address the issue under discussion. Notably, probable cause existed in both cases and White appears to be in contradiction with People v Smith (1 AD3d 965, supra), another Fourth Department case.

In his treatise on Search and Seizure, Professor LaFave states the following regarding the issue (4 LaFave, Search & Seizure § 9.3(a), at 360-65 [4th Ed 2004]):

The primary (indeed, virtually exclusive) inquiry appropriate to determining the lawfulness of a traffic stop is whether there was a pre-existing quantum of evidence to justify the stop. In the run-of-the-mill case, this presents no significant problem, for most traffic stops are made based upon the direct observations of unambiguous conduct or circumstances by the stopping officer. That is, in most of the cases the stopping will have been made on full probable cause.

* * *

But, if as is clear, probable cause is a permissible basis for a traffic stop, is it the only basis, or will some lesser standard also suffice, such as the reasonable suspicion standard approved in Terry v. Ohio for certain investigative stops? Most courts have assumed the latter, i.e., that traffic stops as a class are permissible without probable cause if there exists reasonable suspicion, that is, merely equivocal evidence. Such an assumption is to be found in the federal court decisions of the various circuits, as well as the decisions of most states. In most of these cases the matter has not even been put into issue by the defendant (often because it appears the stop would pass muster even under the probable cause test), but on the rare occasions in which the defendant has made a contrary claim it is often rather summarily dismissed. A few state decisions are to be found not permitting stopping for all traffic violations; sometimes these decisions are grounded in a state statutory provisions so limiting the police authority to make stops, but on other occasions the court, whether or not mentioning the Fourth Amendment, has engaged in analysis one would expect to be employed in determining the issue under the Fourth Amendment.

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The issue that * * * cases * * * fail to meet head-on, whether under Terry a stop is permissible upon less that probable cause merely because of the lesser intrusion or because of both a lesser intrusion and a strong government enforcement interest, has never been specifically decided by the Supreme Court, although language in some of the Court's decisions might lead one to conclude otherwise. On the one hand, there is the statement in Whren v. United States that "as a general matter, the decision to stop an automobile is reasonable where police have probable cause to believe that a traffic violation has occurred," which has been echoed in subsequent decisions. It may quite properly be said of these decisions that while they "indicate that probable cause is a sufficient ground for a stop, none of them indicates that is necessary for a stop." On the other hand, there is the statement in Berkermer v. McCarty, later relied upon in Knowles v. Iowa, that a routine traffic stop "is more analogous to a so-called Terry stop' * * * than to a formal arrest." But in neither case was the quantum of evidence needed for a traffic stop at issue, and the context of the [*7]above quoted language makes it apparent that the Court was only saying that a traffic stop, like a Terry stop, is temporary and brief in nature.

Somewhat more in point than any of those cases is Delaware v Prouse, for the actual holding of the case is that "* * * except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that wither the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment." But it is to be doubted, whether even Prouse settles the matter here at issue, for (I) the case involved traffic stops made purely at random, so that the emphasis was upon the impropriety of such stops rather than the relative merits of the probable cause and reasonable suspicion tests in traffic law enforcement; (ii) the Court actually accepted the notion that under a balancing approach (such as was used in Terry) "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests," so that the nature of the offense would be relevant; and (iii) the particular purpose of the stopping addressed in Prouse may involve an interest much stronger than is true of traffic enforcement generally, i.e., "the danger to life and property posed by" an unlicensed driver not "physically qualified to operate a motor vehicle."

Professor LaFave goes on to speculate that (supra, at 365):

If the Supreme Court were to address the issue here under discussion, it might well be that the Court would conclude that Terry stops upon less than probable cause cannot be made with respect to all offenses, so that a goodly number of traffic offenses would not be encompassed within the Terry reasonable suspicion standard. Such a holding certainly would be faithful to the Terry decision, for there the Court emphasized the nature of the crime there suspected, stating it "would have been poor police work indeed" for the officer "to have failed to investigate" behavior suggesting the defendant was casing a store in preparation for an armed robbery. Later, the Court characterized the Terry rationale as "warrant[ing] temporary detention for questioning on less than probable cause where the public interest involved is the suppression of * * * serious crime," and has said that under Terry seizures "made on less than probable cause" draw their justification from both "the limited intrusions on the personal security of those detained" and "the substantial law enforcement interests" being served.

The court here notes that in Whren, the Supreme Court flatly rejected the balancing approach suggested above only where probable cause was found to exist (512 US 806, 817):

In principle every Fourth Amendment case, since it turns upon a "reasonableness" determination, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause. That is why petitioners must rely upon cases like Prouse to provide examples of actual "balancing" analysis. * * * Our opinion in Prouse expressly distinguished the case from a stop based on precisely what is at issue here: "probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations." * * * What is true of Prouse [*8]is also true of other cases that engaged in detailed "balancing" to decide the constitutionality of automobile stops * * * The detailed "balancing" analysis was necessary because they involved seizures without probable cause.

In the absence of clear authority to the contrary, this court will apply a reasonable suspicion standard to the stop at issue here. In support of this conclusion, the court notes the appellate authority prior to Robinson [FN1], which consistently applied the reasonable suspicion standard to stops based on traffic violations, the fact that probable cause existed in both Robinson and Whren, the ambiguous decisional law subsequent to Robinson [FN2], and more specifically, that courts have not squarely analyzed or addressed the issue [FN3].

Balancing the competing interests of a motorist's right to be free from unreasonable and arbitrary seizures with the public interest in investigating accidents where someone involved has left the scene, the court holds that the reasonable suspicion standard applies and a brief detention for the purpose of investigating the incident is permissible. The court is not unmindful of the fact that where a person leaves the scene of an accident "without reporting", which, if involving only property damage, would constitute a violation of section 600.1 of the Vehicle and Traffic Law, an infraction, but if involving personal injury, would constitute a violation of section 600.2 of the Vehicle and Traffic Law, a crime. To apply an elevated standard to the former and a lower standard to the latter would yield an anomalous, even untenable, result such an approach would allow an officer to justifiably stop a vehicle where he has reasonable suspicion that someone left the scene of an accident that resulted in personal injury but not where there was property damage only.

At bar, therefore, the appropriate standard to be applied is reasonable suspicion and the question to be determined is whether Trooper Reppenhegan, in stopping the defendant's vehicle, had reasonable suspicion to believe that the defendant had been "involved" in an accident, resulting in personal injury or property damage, and left the scene of the accident.

Whether There Was Reasonable Suspicion To Stop The Defendant's Vehicle

Reasonable suspicion can be established on less exacting proof than what is required to show probable cause.

The quantum of evidence needed to establish reasonable suspicion is less than the quantum needed to establish the probable cause for a full-scale arrest. Reasonable suspicion can be established with information that is less in quantity, content and reliability than the information required for probable cause. Although less than probable cause, reasonable suspicion must be more than a hunch. The officer must point to specific and articulable facts which gave rise to the reasonable suspicion.

2-19 New York Criminal Practice § 19.09 [3][a]

"All that is required is that the stop not be the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion" (People v Ingle, 36 NY2d 413, 420 [1975], quoting Terry v Ohio, 392 U.S. 1, 21] [1968]).

In People v. Herold (282 AD2d 1 [1st Dept 2001], lv denied 97 NY2d 682), the First Department rejected the defendant's challenge to the Supreme Court's finding that reasonable suspicion existed, stating:

The radio report [heard by responding officers] gave a reasonably detailed description of the man with the gun, including the suspect's gender, race, physical build, height, the fact that he was bald and the type and color of his jacket. It further provided a specific address where the suspect could be located. Arriving only a minute later, the officers confirmed the accuracy of the information by observing defendant, appearing almost exactly as described, entering the same building as mentioned in the report.

Defendant's argument that this information fails the Aguilar-Spinelli test for probable cause * * * misses the point. To be sure, in evaluating probable cause based on hearsay information, New York applies the Aguilar-Spinelli test, which requires a showing that the informant was reliable and had some basis of knowledge of the information furnished. * * * Since, however, the initial stop in this case did not require probable cause, a lesser showing with respect to the two prongs of the Aguilar-Spinelli test suffices. (See, Alabama v White, 496 US 325, 330 ["reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause"].)

Were it otherwise, the police, on the basis of hearsay information that fails to satisfy Aguilar-Spinelli, could never interfere with the rights of a citizen; probable cause would be required even [*9]for the most limited intrusions based on hearsay information. Such a requirement cannot be reconciled with existing precedent. (See, People v Chase, 85 NY2d 493, 501 [while no probable cause existed under Aguilar-Spinelli, matter remanded to the trial court to evaluate whether reasonable suspicion existed justifying a temporary detention]; see also, People v Landy, 59 NY2d 369, 376.)

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The informant's basis of knowledge was also adequately shown for purposes of demonstrating reasonable suspicion for the stop. The hearing evidence demonstrated that the informant called the police from an apartment in the building outside of which the dispute involving the man with the gun was taking place. Because the information itself supported the conclusion that the informant was in close proximity to, and had some intimate knowledge of, an ongoing dispute, it can be fairly inferred, at least for purposes of establishing reasonable suspicion * * * that the informant's report of a man with a gun was based on the informant's own personal observations. * * *

Consistent with the foregoing, courts have taken what can only be described as a mutable approach in determining whether reasonable suspicion exists, looking at a variety of factors, including whether the informant is identified, the specificity of the description of the suspect, spatial and temporal considerations, and whether the information is corroborated by the officer's observations (see, Matter of Shallany S., 11 AD3d 414 [1st Dept 2004] ["Regardless of whether or not the [identified] citizen-informant's basis of knowledge was sufficiently established * * * the combination of his report to the police and the officers' observation of a bulge suggesting the presence of a weapon provided the requisite reasonable suspicion."]; People v Rivera, 301 AD2d 463 [1st Dept 2003] [Reasonable suspicion existed where defendant and codefendant met a radioed description of burglary suspects, description was sufficiently specific and there was spatial and temporal proximity between suspects and location and happening of the crime], lv denied 4 NY3d 802; cf., People v Braun, 299 AD2d 246 [1st Dept 2002] [Reasonable suspicion lacking under circumstances where police stopped defendant minutes after receiving an anonymous tip from someone who had seen and spoken to the defendant and identified him as a burglary suspect because tip was not "reliable in its assertion of illegality"], lv denied 99 NY2d 612 [2003]).

Also relevant to the analysis here is 1-2 New York Search and Seizure § 2.04, which states:

When the identified informant points out a suspect to the police, the police will have reasonable suspicion to detain the suspect without first ascertaining whether the informant was a witness to the crime. When the police observe a defendant being chased on the street by an individual, the police have reasonable suspicion to stop the defendant, even though the police do not learn until after the chase that the pursuer was the victim, a witness, or a bystander who was helping the victim. * * * Information from an identified citizen that is based on information from a third party can also constitute reasonable suspicion. * * *

When information is supplied by a physically present, but unidentified, citizen, reasonable suspicion can be based on the information received ad the observations of the officer that [*10]corroborate or substantiate some detail or aspect of the information. * * *

Based on the foregoing, it must be concluded that Trooper Reppenhagen had reasonable suspicion to stop the defendant's vehicle. In this regard, Trooper Reppenhagen received a radio transmission alerting him to a possible vehicle involvement with a center median at a specified location. The dispatcher then described the "involvement" as an accident and related the location towards which the vehicle was heading as well as a precise description of the vehicle, including make, model and license plate number. The dispatcher also advised that the vehicle was being chased by the "subject"(meaning the complainant) (see, People v Leak, 303 AD2d 251 [1st Dept 2003] [reasonable suspicion found where, inter alia, officer observed defendant being pursued by two men], lv denied 100 NY2d 595). Minutes later, Trooper Reppenhagen observed the two vehicles at the location described by the dispatcher, and confirmed that the make, model and license plate of defendant's vehicle matched the description he heard. Additional transmissions revealed that the complainant was in direct communication with the dispatcher, and, through the dispatcher, with Trooper Reppenhagen, as evidenced by the fact that the complainant put the "four-ways" on as per Trooper Reppenhagen's instructions. In short, based on the information in his possession, Trooper Reppenhagen had reasonable suspicion to believe that the defendant's vehicle was involved in an accident, had left the scene and was being followed by the victim or a witness to the accident who reported this information to the dispatcher (see, generally, People v Landy, 59 NY2d 369 [1983]). The circumstances adequately demonstrate the complainant's reliability and basis of knowledge.

Accordingly, the branch of defendant's motion seeking suppression of evidence as the product of an unlawful seizure is denied.

This constitutes the decision and order of the court.

So ordered:

DISTRICT COURT JUDGE

Dated:September 20, 2006

CC:Kathleen Rice, District Attorney

Perini & Hoerger

VMD/mp Footnotes

Footnote 1: E.g., People v Ingle, 36 NY2d 413 [1975]; Matter of Jackson, 241 AD2d 943 [4th Dept 1997]; People v Schroeder, 229 AD2d 917 [4th Dept 1996]; People v Riggio, 202 AD2d 609 [2d Dept 1994]; People v Gales, 187 AD2d 606 [2d Dept 1992], lv denied 81 NY2d 788 [1993].

Footnote 2:Many of the cases citing Robinson, at first glance, seem to, but actually do not address the issue (e.g., People v Wright, 98 NY2d 657 [2002]; People v Garcia, 30 AD3d 833 [3d Dept 2006]; People v Brooks, 23 AD3d 847 [3d Dept 2005], lv denied 6 NY3d 810 [2006]; People v Bradley, 17 AD3d 1050 [4th Dept 2005], lv denied 5 NY3d 786; People v Watson, 15 AD3d 598 [2d Dept 2005], lv denied 4 NY3d 857; People v Kearney, 14 AD3d 938 [3d Dept 2005], lv denied 5 NY3d 764; People v Washburn, 309 AD2d 1270 [4th Dept 2003]; People v Ferraiolo, 309 AD2d 981 [3d Dept 2003], lv denied 1 NY3d 627 [2004]; People v Hammond, 291 AD2d 779 [2d Dept 2002]; People v Washington, 291 AD2d 780 [4th Dept 2002], lv denied 98 NY2d 682; People v Mandato, 195 Misc 2d 636 [Appellate Term First Dept 2003], lv denied 100 NY2d 563).

Footnote 3:E.g., People v Chisolm, 15 AD3d 154 [1st Dept 2005] [Stop upheld were "[i]t was undisputed that the police had probable cause or reasonable suspicion upon which to stop a particular vehicle." (emphasis added)], lv denied 4 NY3d 884. The case that is perhaps most directly on point is People v Kalwiss (6 Misc 3d 129A, supra), which states, without explanation, that the reasonable suspicion standard applies to stops based on traffic violations.