People v Martinez-Lopez

[*1] People v Martinez-Lopez 2007 NY Slip Op 52116(U) [17 Misc 3d 1122(A)] Decided on October 29, 2007 District Court Of Nassau County, First District Engel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 29, 2007
District Court of Nassau County, First District

The People of the State of New York,

against

Adolfo Martinez-Lopez, Defendant.



2006NA001077



For Plaintiff: Hon Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Kenneth J. Weinstein, Esq.

Andrew M. Engel, J.

The Defendant was arrested on January 2, 2006 and charged with driving while intoxicated, pursuant to VTL § § 1192(2) and (3), unsafe lane change, pursuant to VTL § 1128(a), and changing lanes without signaling, pursuant to VTL §1163(d).

By Notice of Motion dated May 16, 2006, the Defendant moved,in pertinent part, for "an Order pursuant to CPL § 710.20 and the Fourth, Fifth and Fouteenth Amendments to the United States Constitution, suppressing, or, in the alternative, granting Defendant a pre-trial hearing to suppress, any statements which may have bee illegally obtained from Defendant;" and "For a further Order pursuant to CPL § 710.20 and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, suppressing, or, in the alternative, granting Defendant a pre-trial hearing to suppress, any and all evidence obtained as a result of the failure to have sufficient probable cause to stop Defendant[.]" (Notice of Motion 5/15/06, ¶¶ 1 and 2) That motion resulted in the Order of Hon. Francis D. Ricigliano, dated August 7, 2006, which, inter alia, denied that branch the Defendant's motion which sought to suppress the results of a breath test, "due to the factual insufficiency of the defendant's motion papers[;]" (Ricigliano, J. Order 8/7/06, ¶ 1) and granted that branch of the Defendant's motion which sought to suppress his statements, to the extent of granting a Huntley[FN1] hearing "to determine whether statements made to the police were obtained involuntarily within the meaning of CPL § 60.45(2)(b)(ii)[.]" (Ricigliano, J. Order 8/7/06, ¶ 3) Judge Ricigliano further directed that "[p]robable cause will not be litigated at this hearing due to the factual insufficiency of defendant's motion papers."(Ricigliano, J. Order 8/7/06, ¶ 3)

On April 13, 2007 the matter was referred to this court (Engel, J.) for a Huntley hearing. Judge Ricigliano's order notwithstanding, prior to commencement of the hearing, the People [*2]consented to include the issue of reasonable suspicion to have stopped the Defendant's vehicle in the first instance, pursuant to People v. Ingle, 36 NY2d 413, 369 NYS2d 67 (1975), to be determined by the hearing court.

The only witness called by the People to testify at the hearing was Trooper Robert DeCocco. The Defendant did not call any witnesses. Trooper DeCocco testified that on January 1, 2006, at approximately 4:10 a.m., he was traveling eastbound on the Southern State Parkway, west of Exit 18, when he observed a grey Plymouth automobile move from one lane to another without signaling. Trooper DeCocco then pulled the Plymouth over to the side of the road and approached the vehicle on foot.

Upon approaching the driver's side of the Plymouth, Trooper DeCocco observed the Defendant behind the driver's wheel and asked the Defendant where he was coming from. The Defendant replied that he was coming from a party. To this point, Trooper DeCocco he had not made any particular observations about the Defendant and did not suspect the Defendant of driving while intoxicated.

Intending to continue this conversation, Trooper DeCocco directed the Defendant to get out of the vehicle and walk around to the front of that vehicle. According to the Trooper he did so because he was standing in a moving lane of traffic while talking to the Defendant at the driver's side window; and, he wanted to move to a safer location while continuing the conversation. The Defendant exited his vehicle and walked around to the front with Trooper DeCocco. The Defendant was not under arrest at this time.

While in front of the Defendant's vehicle, now one (1) to two (2) minutes after the initial stop, Trooper DeCocco observed the Defendant to have the odor of alcohol about him, along with blood shot and watery eyes. At or about this same time, the Trooper asked the Defendant if he had had anything to drink, to which the Defendant responded, in sum and substance, that he had had four or five glasses of beer and/or wine and was driving home.

On May 4, 2007 this court (Engel, J.) issued a Decision and Order denying suppression of the Defendant's statement. See: People v. Martinez-Lopez, 16 Misc 3d 298, 834 NYS2d 852 (Dist.Ct. Nassau Co. 2007) In so doing, the court rejected the Defendant's argument, based upon People v. Rice, 11 Misc 3d 539, 810 NYS2d 306 (S.C. NY Co. 2006),[FN2] that neither VTL § 1163(d), nor any other section for that matter, mandates that a driver signal when changing lanes and, therefore, there was no reasonable suspicion to have stopped the Defendant's vehicle. This court found the Defendant's statement to have been voluntarily made in response to reasonable inquiry pursuant to a routine traffic stop. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984); People v. Mathis,136 AD2d 746, 523 NYS2d 915 (1988); People v. McGreal, 190 AD2d 869, 593 NYS2d 868 (2nd Dept. 1993); People v. Brown, 104 AD2d 696, 480 NYS2d 578 (3rd Dept. 1984); People v. Fiorello, 104 AD2d 708, 529 NYS2d 27 (2nd Dept. 1988)

Thereafter, by Notice of Motion dated July 9, 2007, the Defendant moved:

1.For an Order pursuant to CPL § 710.20 and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, suppressing, or, in the alternative, granting Defendant a pre-trial hearing to suppress, all evidence obtained from Defendant as a result of an unlawful stop and [*3]detention of Defendant;

2.In the event that the relief sought hereinabove is denied, for an order granting the Defendant a further opportunity to serve and file further demands and motions;[FN3]

In so doing, the Defendant argues that, the validity of the initial stop of the Defendant's vehicle notwithstanding,"Trooper DiCocco unreasonably and without factual basis, requested Defendant to step out of his vehicle, after a conversation had already taken place and even Trooper DiCocco testified that he had no reason to believe Defendant was under the influence of alcohol." (Langer Affirmation 7/9/07, ¶ 4) Relying on People v. Woods, 189 AD2d 838, 592 NYS2d 748 (2nd Dept. 1993) and People v. Banks, 85 NY2d 558, 626 NYS2d 986 (1995), the Defendant asserts that any statement he made and the results of any chemical breath test administered following this "illegal detention" (Langer Affirmation 7/9/07, ¶ 6) should be suppressed.

The People oppose the motion on procedural and substantive grounds. In the first instance, the People argue that the present motion is nothing more than a reiteration of the original motion submitted to Judge Ricigliano. The People suggest that the arguments put forth by the Defendant, at this time, should have been raised in the prior motion or, at least, during the Huntley/Ingle hearing on April 13, 2007. The People posit that this is essentially a motion to reargue, for which there is no legal basis. Substantively, the People argue that the statements and chemical breath test results were "obtained as a result of a lawful stop and lawful and reasonable investigation." (Cepriano Affiramation 7/10/07, ¶ 20)

In reply, the Defendant argues that the present motion and his original motion are separate and distinct. While acknowledging that both motions address the voluntariness of the Defendant's statements, the Defendant alleges that his prior motion papers "made it very clear that Defendant only sought suppression on the ground that the police did not have reasonable suspicion that a traffic infraction occurred."[emphasis in original](Langer Affirmation, 9/10/07, ¶ 8) The Defendant further argues that there was no way he could have previously brought a motion to suppress based upon his claim of an "illegal detention," because "the facts adduced at the hearing were in the exclusive possession of the People prior to the hearing, and there was no way Defendant could have known about these facts previously."(Langer Affirmation, 9/10/07, ¶ 11) The Defendant avers that he could not have raised this argument during the April 13, 2007 hearing, when he heard Trooper DeCocco's testimony, because this court (Engel, J.) prevented him from doing so; although he characterizes the court's ruling as "entirely correct." (Langer Affirmation, 9/10/07, ¶ 11)

It is the opinion of this court that the Defendant's motion is procedurally and substantively without merit. What the Defendant is attempting to do is take multiple bites of the same apple, raising, for the first time, arguments available to him at the time of his prior motion and at the Huntley hearing.

CPL § 255.20(2) provides, in pertinent part:

2. All pre-trial motions, ..., whenever practicable, shall be included within the same set of motion papers, and shall be made returnable on the same date, unless the defendant shows that it would be [*4]prejudicial to the defense were a single judge to consider all the pre-trial motions.

Additionally, CPL § 710.40(2) provides, in pertinent part:

2.The motion [to suppress] may be made for the first time when, owing to unawareness of facts constituting the basis thereof or to other factors, the defendant did not have reasonable opportunity to make the motion previously, or when the evidence which he seeks to suppress is of a kind specified in section 710.30 and he was not served by the people, as provided in said section 710.30, with a pre-trial notice of intention to offer such evidence at the trial.

Each of these statutes contemplates a single omnibus motion "to avoid the proliferation experienced under prior procedure in which a defendant could bombard the courts and Judges with dilatory tactics continuing right up to the eve of trial (see 1972 Report of NY Judicial Conference Advisory committee on the CPL, 1973 McKinney's Session Laws of NY, pp. 2076-2077)." People v. Lawrence, 64 NY2d 200, 485 NYS2d 233 (1984); see also: People v. Voutsinas, 62 AD2d 465, 406 NYS2d 138 (3rd Dept. 1978) As such, the statutes were specifically designed to avoid having an unsuccessful movant simply make repetitive motions raising different arguments, on the same set of facts.

A party may be permitted to renew a previously denied suppression motion where "the court is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion ...."CPL § 710.40(4); People v. Washington, 238 AD2d 43, 671 NYS2d 439 (1st Dept. 1998); People v. Morales, 281 AD2d 182, 721 NYS2d 526 (1st Dept. 2001); People v. Bilbrew, 268 AD2d 591, 702 NYS2d 837 (2nd Dept. 2000) Likewise, a defendant may move to reargue the previously denied motion where he can demonstrate that the court overlooked or misapprehended facts or law, or mistakenly arrived at its prior decision for some other reason. New York Central Mutual Insurance Co. v. Davalos, 39 AD3d 654, 835 NYS2d 247 (2nd Dept. 2007); McDonald v. Stroh,842 NYS2d 727, (2nd Dept. 2007); People v. Ryan, 13 Misc 3d 451, 822 NYS2d 856 (Sup. Ct. Queens Co. 2006) As will be discussed at length hereinafter, the Defendant's motion does not satisfy any of these criteria.

Contrary to the Defendant's argument, his prior motion addressed the same relief and issues raised in the present motion, to wit: suppression of any statements obtained in violation of the Defendant's constitutional rights and suppression of all evidence obtained in the absence of probable cause. The Defendant's present argument lumps these two prayers for relief together, with the slight modification of adding the alleged "unlawful detention," which, as will be discussed, could have been raised by the Defendant at the time of his original motion and/or at the time of the Huntely hearing.

At the time of his original suppression motion, the Defendant argued, as he does today, that the statements attributed to him "were not voluntarily made and were in violation of Defendant's federal and state constitutional rights." (Weinstein Affirmation 5/15/06, ¶ ¶ 4 and 5) More particularly, the Defendant argued that "evidence may be suppressed if it consists of testimony reciting or describing a statement of such defendant involuntarily made, within the meaning of section 60.45."[emphasis in original] (Langer Affirmation 6/20/06, ¶ 4) Regarding voluntariness, CPL § 60.45 provides: [*5]

2.A confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him:

(a) By any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or

(b) By a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him: (i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or (ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States.

The Defendant cannot now be heard to complaint that the Huntley hearing ordered by Judge Ricigliano, on the issue of voluntariness, and the hearing conducted by this court (Engel, J.) did not involve all constitutional issues, including those the Defendant now raises.

Contrary to the Defendant's claim, he was presented with multiple opportunities to argue, as he does today, that he was "unlawfully detained" after the initial stop, requiring the suppression of all that followed. Contrary to the Defendant's suggestion, the facts adduced at the April 13, 2007 hearing were not "in the exclusive possession of the People prior to the hearing[.]" (Langer Affirmation 9/10/07, ¶ 11) The initial stop of the Defendant's vehicle, Trooper DeCocco's initial limited inquiry, the Trooper's direction for the Defendant to exit his vehicle before he was questioned about his alcohol consumption and his response thereto were nothing more than "the facts and circumstances surrounding his arrest, of which he is presumed to have knowledge (see, People v. Hankins, 265 AD2d 572, 697 NYS2d 144; People v. Adams, 224 AD2d 433, 434, 637 NYS2d 477; People v. Toxey, 220 AD2d 204, 205, 631 NYS2d 846; People v. Mitchell-Benetiz, 168 AD2d 994, 564 NYS2d 9360." People v. Young, 278 AD2d 437, 718 NYS2d 630 (2nd Dept. 2000); see also: People v. Kneitel, 33 AD3d 816, 822 NYS2d 602 (2nd Dept. 2006); People v. Greaves, 12 AD3d 690, 784 NYS2d 884 (2nd Dept. 2004) Although possessed with this knowledge, at the time he brought his original suppression motion, the Defendant failed to include any of these facts in his motion papers, resulting in Judge Ricigliano finding the papers factually insufficient to require a hearing on the issue of probable cause. In the absence of anything truly new, this court (Engel, J.) is not in a position to overrule Judge Ricigliano. People v. Evans, 94 NY2d 499, 706 NYS2d 678 (2000); People v. Leon, 264 AD2d 784, 695 NYS2d 124 (2nd Dept. 1999)Nevertheless, even if these facts were not known to the Defendant prior to the bringing of his original suppression motion, he certainly learned these facts before the conclusion of the Huntley hearing. This allegedly "new evidence" was, in fact, elicited by the Defendant, over the People's objection: [*6]

QSo, you made no observation with respect to Mr. Martinez-Lopez when you asked him to get out of the car regarding specifically intoxication?

MS. CEPRIANO:I would object to this line of questioning being outside the scope of the hearing.

THE COURT:Overruled

ACan you ask that question again?

QSure. Let me rephrase it. At the time you asked him to get out of the car him, meaning the defendant did you have any suspicion or reason to believe that Mr. Martinez-Lopez was in fact intoxicated.

ANo.

QDid there come a time that you did?

AYes.

QWhen was that?

AThat was after we made conversation on the side of the road. (Hearing Transcript 4/13/07, P 15 L 19 through P 16 L 13)

See: People v. Gagne, 129 AD2d 808, 514 NYS2d 799 (2nd Dept.1987) lv. den. 70 NY2d 704, 519 NYS2d 1038 (1987); People v. Rufino, 198 AD2d 7, 603 NYS2d 143 (1st Dept.1993); People v. Lester, 232 AD2d 427, 648 NYS2d 615 (2nd Dept.1996)

Additionally, the Defendant was given every opportunity to make his argument regarding the alleged "unlawful detention," as it affected his statements. Before any testimony was taken, the Defendant was given the opportunity to make an opening statement, framing the issues, but declined. Similarly, following the testimony, the Defendant was given the opportunity to argue the issues raised by that testimony and chose to only argue the Trooper's reasonable suspicion for the initial stop. The Defendant's present claim, that he was precluded from arguing the alleged "unlawful detention," is disingenuous. A review of the record discloses that at no time was the Defendant prevented from raising such an argument. Moreover, at no time did the Defendant even attempt to raise same. [*7]

The colloquy cited by the Defendant has nothing whatsoever to do with the alleged "unlawful detention" as a purported reason for suppression. The colloquy upon which the Defendant relies was in response to the Defendant's attempt to argue that the absence reasonable suspicion for the initial stop would require the suppression of the Defendant's statements and all other evidence, including the chemical breath test, which, the Defendant agrees, was beyond the scope of the hearing. If there be any doubt on this point, one need only look to the colloquy cited by the Defendant, wherein defense counsel stated, "it was specifically indicated that we would be inquiring into the possibility of suppression of the statements, as well as the legitimacy of the stop. " (Hearing Transcript 4/13/07, P39 L12-15) The extended colloquy which preceded that cited by the Defendant further demonstrates the lack of merit to the Defendant's claim on this point:

... I think that when your Honor had indicated that if the stop was bad that it would justify suppression of the statement, I think that that actually doesn't go far enough.

Judge, respectfully, I disagree with the assistant district attorney's characterization of the law in this regard, because if the stop is bad, then everything has to be suppressed, Judge. That

THE COURT:There's only one thing in from of me.

MR. LANGER:Your Honor, respectfully

THE COURT:No. Mr. Langer, the only reason you are here today is on whether or not the statements are going to be suppressed, period, end of conversation.

MR. LANGER:You're right, your Honor. (Hearing Transcript 4/13/07, P36 L9-25)

Having failed to raise his "unlawful detention" argument, either in his original suppression motion or at the time of the Huntley hearing, choosing instead to wait until receipt of the Decision and Order dated May 4, 2007, rejecting his argument based upon People v. Rice, 11 Misc 3d 539, 810 NYS2d 306 (S.C. NY Co. 2006), the Defendant is not entitled to have these suppression issues heard again. People v. Adams, 224 AD2d 433, 637 NYS2d 477 (2nd Dept. 1996) cert. den. 526 U.S. 1101, 119 S. Ct. 1581 (1999); People v. Egan, 72 AD2d 239, 424 NYS2d 546 (4th Dept. 1980)

The above notwithstanding, there is no substantive merit to the Defendant's argument that he was unlawfully detained, after the initial traffic stop, requiring the suppression of all evidence obtained thereafter.

In determining the propriety of police conduct, the court must weigh the degree of intrusion against the circumstances out of which the encounter with the Defendant arose. People v. Salaman, 71 NY2d 869, 527 N.Y.S.2d 750 (1988); People v. Hensen, 21 AD3d 172, 799 NYS2d 444 (1st Dept. 2005) The focus must be on whether the police conduct was reasonable in view of the totality of the circumstances. People v. Anderson, 17 AD3d 166, 793 NYS2d 353 (1st Dept. 2005); People v. [*8]Lomiller, 30 AD3d 276, 818 NYS2d 27 (1st Dept. 2006)

There is no question that Trooper DeCocco had a reasonable suspicion to stop the Defendant's vehicle for changing lanes without signaling, in violation of VTL § 1163(d). See: People v. Rice, __ AD3d __, 841 NYS2d 72 (1st Dept. 2007); People v. Martinez-Lopez, 16 Misc 3d 298, 834 NYS2d 852 (Dist.Ct. Nassau Co. 2007); People v. James, __ Misc 3d __, __ NYS2d __, 2007 WL 2756953 (Crim.Ct.Queens Co. 2007) It is equally beyond cavil that a temporary roadside detention pursuant to a routine traffic stop is not custodial in nature. People v. Myers, 1 AD3d 382, 766 NYS2d 581 (2nd Dept. 2003) lv. den. 1 NY3d 631, 777 NYS2d 30 (2004); People v. Parris, 26 AD3d 393, 809 NYS2d 176 (2nd Dept. 2006) lv. den. 6 NY3d 851, 816 NYS2d 757 (2006); People v. Gutierrez, 13 AD3d 268, 787 NYS2d 266 (1st Dept. 2004) It is equally well established that after stopping a vehicle for an alleged Vehicle and Traffic Law violation a police officer may conduct a reasonable initial interrogation attendant to a roadside investigation. People v. Harris, 186 AD2d 148, 587 NYS2d 425 (2nd Dept.1992); People v. Kearney, 288 AD2d 398, 733 NYS2d 460 (2nd Dept. 2001)

That Trooper DeCocco did not have reason to believe the Defendant was intoxicated at the moment he directed the Defendant to exit his vehicle is of no significance. Contrary to the Defendant's representation, the hearing testimony makes clear that Trooper DeCocco had not completed his roadside investigation when he had the Defendant step out of his car. At that time, the Trooper knew that it was 4:10 a.m., that the Defendant was coming from a New Year's Eve party and that he had observed the Defendant change lanes without signaling. Trooper DeCocco intended to continue his roadside investigation, but he was standing in a moving lane of traffic, so he directed the Defendant to come around to the front of the vehicle for safety reasons.[FN4] That the Trooper observed the Defendant's blood-shot and watery eyes, the aroma of alcohol, and the Defendant's statement that he had had four or five glasses of beer and/or wine to drink, upon the Defendant's exiting his vehicle, is not a reason to suppress.

The Defendant's reliance upon People v. Woods, 189 AD2d 838, 592 NYS2d 748 (2nd Dept. 1993) and People v. Banks, 85 NY2d 558, 626 NYS2d 986 (1995) is misplaced, as both are readily distinguishable from the matterbefore this court. In Woods, supra . the defendant had exited his vehicle without being asked; and, the officer's inquiry of the defendant relating to possession of weapons, along with the subsequent search of the defendant's vehicle, had no relation to the traffic infraction involved and was not based upon any observation of any suspicious activity. In the matter sub judice, the Trooper's inquiry related to the manner in which the Defendant's vehicle was being operated and was made at the time he observed the smell of alcohol and the Defendant's blood-shot and watery eyes. Similarly, in Banks, supra . the vehicle in which the defendant was riding was properly pulled over for speeding; and, once the driver's license and rental agreement were verified, [*9]the officer had no reason to hold the defendant until back-up arrived and the vehicle was searched. Contrary to the matter sub judice, noting the absence of circumstances coming to the officer's attention raising a reasonable suspicion of criminal activity, the court found the continued detention of the defendant to be in violation of his constitutional rights. In fact, the court specifically noted, "For a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first place (citations omitted) In the present case, unlike in Banks, supra ., only one to two minutes elapsed from the initial stop until the Trooper made observations regarding the Defendant's intoxication.

A case which is virtually identical to the Defendant's situation is Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330 (1977). In Mimms, id., the police pulled the defendant over after observing him driving with an expired license plate and asked him to step out of his car, although, "the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior."Mimms, id. at p. 110, 333 Upon the defendant exiting his vehicle the police observed a large bulge in the defendant's jacket, whereupon the officer frisked the defendant and found a gun. In reversing the suppression of the gun by the Supreme Court of the State of Pennsylvania, the United States Supreme Court observed, "We think it too plain for argument that the State's proffered justification-the safety of the officer-is both legitimate and weighty." Mimms, id. at p. 110, 333 As if directly addressing the facts and circumstances presented sub judice, the court went on to recognize:

The hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.

Mimms, id. at p. 111, 333, and went on to hold, "once a motor vehilce has been lawfully detained for a traffic violation, the police officers may order the driver out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Mimms, id. at p. 111, 333, n.6

People v. McLaurin, 120 A.D2d 270, 508 NYS2d 429 {120 AD2d 270} (1st Dept. 1986), which involved a routine traffic stop for speeding, is to the same affect. The arresting officer testified that

"he never observed any conduct that would give rise to a suspicion of wrongdoing on defendant's part." Based on this testimony, the defendant therein argued, as does the Defendant herein, that the officer had no reason to direct him to exit his vehicle and that the subsequent discovery of evidence of criminal activity must be suppressed. In rejecting this argument, as this court does now, the court held, "Before a police officer orders a[n individual] out of a car, he is not required to have, separate and distinct from the underlying traffic violation which serves as the predicate for the stop, an articulable basis to support a suspicion either as to the existence of criminal activity by the [individual] or that he poses a threat to the officer's safety."

Based upon all of the foregoing, that branch of the Defendant's motion which seeks an order [*10]suppressing all evidence, re-opening the Huntley hearing and/or the holding of a Dunaway[FN5] hearing is denied. That branch of the motion requesting leave to serve and file supplemental demands and motions is referred back to the court before which this matter is proceeding.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

October 29, 2007

___________________________

Andrew M. Engel

J.D.C. Footnotes

Footnote 1: People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965)

Footnote 2: On August 23, 2007, consistent with this court's (Engel, J.) holding, People v. Rice, supra ., was overruled, People v. Rice, __ AD3d __, 841 N.Y.S.2d 72 (1st Dept. 2007)

Footnote 3: This motion was referred to this court (Engel, J.) by order of Hon. Norman St. George dated October 17, 2007

Footnote 4: "The Fourth Amendment of the United States constitution is not violated when a driver is directed to step out briefly from a lawfully stopped and detained vehicle because the inherent and inordinate danger to investigating police officers in completing their authorized official responsibilities in such circumstances justifies that precautionary action (citation omitted)." People v. Robinson, 74 NY2d 773, 545 NYS2d 90 (1989); see also: People v. Haynes, 16 AD3d 434, 790 N.Y.S.2d 542 (2nd Dept. 2005); People v. Coutin, 168 AD2d 269, 563 NYS2d 394 (1st Dept. 1990)

Footnote 5: Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979)