| People v Smith |
| 2009 NY Slip Op 08334 [67 AD3d 1392] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v LarrySmith, Jr., Respondent. |
—[*1] Thomas J. Casey, Williamsville (Arthur G. Baumeister, Jr., of counsel), fordefendant-respondent.
Appeal from an order of the Erie County Court (Michael F. Pietruszka, J.), entered February11, 2009. The order granted defendant's motion to suppress certain evidence.
It is hereby ordered that the order so appealed from is unanimously affirmed and theindictment is dismissed.
Memorandum: The People appeal from an order granting defendant's motion to suppressevidence seized as the result of a traffic stop. We conclude that County Court properlysuppressed the evidence on the ground that the police officer made a mistake of law in stoppingdefendant's vehicle, which had in fact performed a legal pass on the right pursuant to Vehicleand Traffic Law § 1123 (a) (1) and (2). "Where the officer's belief is based on anerroneous interpretation of law, the stop is illegal at the outset and any further actions by thepolice as a direct result of the stop are illegal" (Matter of Byer v Jackson, 241 AD2d 943,944-945 [1997]; see People vSmith, 1 AD3d 965 [2003]; see also People v Gonzalez, 88 NY2d 289, 295-296[1996]). Present—Hurlbutt, J.P., Centra, Fahey, Peradotto and Gorski, JJ.