| People v Estrella |
| 2008 NY Slip Op 01239 [48 AD3d 1283] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Luis Estrella,Appellant. City of Rochester, Respondent. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent the People of the State of New York. Thomas S. Richards, Corporation Counsel, Rochester (John G. Rizzo of counsel), forrespondent City of Rochester.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered October24, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1]). Contrary to the contention of defendant, County Court properly refused to suppress evidenceseized from his vehicle. The evidence at the suppression hearing established that a police officerreceived a radio transmission that police "needed a Mercedes Benz stopped on Lyell Avenue."Upon observing a Mercedes Benz traveling on Lyell Avenue with a rear window that appeared tobe heavily tinted, the officer stopped the vehicle. Another officer responded with a tint meter totest the window tint and determined that the level of light transmittance in the rear window was10%. Vehicle and Traffic Law § 375 (12-a) (b) (4) provides in relevant part that "[n]operson shall operate any motor vehicle upon any public highway, road or street . . .the rear window of which is . . . treated with any material which has a lighttransmittance of less than seventy percent." The vehicle had Georgia license plates anddefendant, who failed to present a valid driver's license, informed the officers that he resided inGeorgia. The officers then obtained information from the American Automobile Association tothe effect that, pursuant to a Georgia statute, the window was required to have light transmittanceof 32% (see § 250 [1]). Defendant correctly contends that, several months beforethe officers stopped his vehicle, the Supreme Court of Georgia had held that the statute wasunconstitutional (Ciak v State, 278 Ga 27, 28-29, 597 SE2d 392, 394 [2004]).[*2]
We cannot agree with the dissent that the officer whostopped defendant's vehicle knew at the time of the stop that "defendant's vehicle was registeredin Georgia and that defendant was a Georgia resident" and thus that, pursuant to Vehicle andTraffic Law § 250 (1), defendant was exempt from the requirements of section 375 (12-a)(b) (4). Section 250 (1) provides in relevant part that the owner of a vehicle that is in compliancewith the registration and equipment requirements of the state in which the owner resides isexempt from provisions of the Vehicle and Traffic Law pertaining to registration and equipment.The exemption is applicable, however, only if the state in which the owner resides grants "likeexemptions" to residents of New York State (id.). The record of the suppression hearingestablishes that, at the time of the stop, the officer did not know whether defendant was theowner of the vehicle, whether the vehicle was properly registered in Georgia, or whether the lighttransmittance complied with Georgia law (see id.). Rather, the officer knew only that thevehicle was operated on a public highway with a rear window that appeared to be tinted with amaterial having a light transmittance of less than 70%. We therefore conclude that the officerwho stopped the vehicle had the requisite probable cause to believe that a violation of Vehicleand Traffic Law § 375 (12-a) (b) (4) had occurred (see People v Robinson, 97NY2d 341, 349-350 [2001]; People v McKane, 267 AD2d 253 [1999], lv denied94 NY2d 922 [2000]). The stop itself was necessary to obtain the information whethersection 250 (1) was applicable and thus whether defendant was exempt from the requirements ofsection 375 (12-a) (b) (4). Also contrary to the view of the dissent, it is unreasonable to requirethat police officers be familiar with the equipment requirement laws of every state, andpresumably other countries, in order to effectuate a proper stop for a violation of New York Statelaw.
Contrary to the further contention of defendant, the use of a narcotics-detection dog to sniffthe exterior of the vehicle during the lawful stop of his vehicle did not violate his constitutionalright to be protected from unlawful search and seizure (see Illinois v Caballes, 543 US405, 409 [2005]; People v Willette,42 AD3d 674, 675 [2007], lv denied 9 NY3d 883 [2007]). Furthermore, uponobtaining a positive indication from the dog that drugs were present in the vehicle, the policethereafter properly obtained a search warrant (see People v Leon, 23 AD3d 1110 [2005], lv denied 6NY3d 755 [2005]). We conclude that the court properly denied the request of defendant for ahearing pursuant to Franks v Delaware (438 US 154 [1978]) challenging the veracity ofthe affidavit in support of the search warrant application. Although the affiant stated that the dogwas a certified narcotics-detection dog when in fact the dog's certification had expiredapproximately one month before the search and the dog was not recertified until approximatelytwo weeks after the search, we nevertheless conclude on the record before us that defendantfailed to establish the need for a Franks hearing, to show that the affiant "deliberatelyfalsified allegations to demonstrate probable cause" (Franks, 438 US at 168; seePeople v Cohen, 90 NY2d 632, 637-638 [1997]). We have reviewed defendant's remainingcontention and conclude that it is without merit.
All concur except Lunn and Green, JJ., who dissent and vote to reverse in accordance withthe following memorandum.
Lunn and Green, JJ. (dissenting). We respectfully dissent because we cannot agree with themajority that County Court properly refused to suppress evidence seized from defendant'svehicle. It is by now well established that a police officer may lawfully stop a motor vehiclewhere the officer has "probable cause to believe that the driver of [the motor vehicle] hascommitted a traffic violation" (People v Robinson, 97 NY2d 341, 349 [2001]), and weagree with the majority that the police may lawfully stop a vehicle for the traffic infraction ofexcessively tinted windows (see People v McGriff, 219 AD2d 829, 830 [1995]). NewYork motor vehicle equipment provisions, however, do not apply to motor vehicles owned bynonresidents of New York, provided that the owner is in compliance with the equipmentprovisions of the law of the state of his or her residence (see Vehicle and Traffic Law§ 250 [1]). Here, the police officer who stopped defendant's vehicle knew only thatdefendant's vehicle was registered in Georgia and that defendant was a Georgia resident. Thus,Georgia law applied with respect to the tinted rear window on defendant's vehicle, and there wasno window tint law in effect when defendant's [*3]vehicle wasstopped. The window tint statute in Georgia had been declared unconstitutional by the SupremeCourt of Georgia (see Ciak v State, 278 Ga 27, 28-29, 597 SE2d 392, 394 [2004]) severalmonths before the defendant's vehicle was stopped, and a new window tint statute was notenacted in Georgia until nearly a year after the prior statute was declared unconstitutional(see Ga L 2005, act 67). Thus, contrary to the view of the majority, we conclude that thepolice did not have probable cause to believe that defendant had committed a traffic infraction.While it is true that the officers were unaware that Georgia's window tint statute had beendeclared unconstitutional, that mistake of law, as opposed to a mistake of fact, cannot justify thestop of a vehicle and the ensuing search and subsequent seizure of evidence therefrom (see People v Smith, 1 AD3d 965[2003]; Matter of Byer v Jackson, 241 AD2d 943, 944-945 [1997]). Further, we discernno valid public policy reason for not requiring police officers to familiarize themselves with themotor vehicle equipment laws of other states if they stop such vehicles solely on the basis of apurported equipment violation. Motor vehicle stops constitute "at least a limited seizure subjectto constitutional limitations" (People v John BB., 56 NY2d 482, 487 [1982], certdenied 459 US 1010 [1982]) and, in our view, where a stop is predicated on a trafficinfraction, police officers must be charged with the objective standard of knowing whether suchan infraction occurred (see generally Robinson, 97 NY2d at 349-350). Here, defendant'spurported window tint violation cannot justify the stop of defendant's motor vehicle.
Inasmuch as there is no legal justification for the stop of defendant's vehicle, we wouldreverse the judgment, vacate the plea of guilty, grant that part of the motion of defendant tosuppress evidence seized from his vehicle, dismiss the indictment and remit the matter to CountyCourt for proceedings pursuant to CPL 470.45. Present—Scudder, P.J., Gorski, Lunn,Peradotto and Green, JJ.