| Matter of McDonell v New York State Dept. of Motor Vehicles |
| 2010 NY Slip Op 06929 [77 AD3d 1379] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Kyle P. McDonell, Petitioner, v New York StateDepartment of Motor Vehicles et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Paul Groenwegen of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the SupremeCourt in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Ann MarieTaddeo, J.], dated April 15, 2010) to review a determination of respondent Commissioner, New YorkState Department of Motor Vehicles. The determination suspended petitioner's license for refusal tosubmit to a chemical test.
It is hereby ordered that the determination is unanimously annulled on the law without costs and thepetition is granted.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul thedetermination suspending his license. We agree with petitioner that the determination is not supportedby substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of HumanRights, 45 NY2d 176, 181-182 [1978]). Petitioner was stopped by a New York State Trooperafter petitioner had turned onto an entrance ramp leading to an interstate highway and had accelerated,causing the vehicle to fishtail. The Trooper who observed the fishtailing stopped petitioner's vehiclebased solely on his belief that petitioner had violated Vehicle and Traffic Law § 1162, whichprohibits unsafely moving a stopped, standing or parked vehicle "unless such movement can be madewith reasonable safety." Following further investigation, the Trooper took petitioner into custody basedon the Trooper's belief that petitioner was operating the vehicle while under the influence of alcohol.Thereafter, petitioner refused to submit to a chemical test and, based on that refusal, his driver's licensewas suspended.
A refusal revocation hearing was held pursuant to Vehicle and Traffic Law § 1194 (2) (c),following which the Administrative Law Judge (ALJ) concluded that the Trooper had lawfully arrestedpetitioner and that petitioner had refused to submit to a chemical test for the purpose of determining hisblood alcohol content. Respondent subsequently confirmed that determination on petitioner's [*2]administrative appeal.
We agree with petitioner that he did not violate Vehicle and Traffic Law § 1162, inasmuchas it is undisputed that petitioner's vehicle had not been stopped, standing or parked before the Trooperstopped the vehicle. "A [trooper] is authorized to stop a motor vehicle on a public highway when the[trooper] observes or reasonably suspects a violation of the Vehicle and Traffic Law . . .Where[, as here, a trooper's] belief is based on an erroneous interpretation of law, the stop is illegal atthe outset and any further actions by the [trooper] as a direct result of the stop are illegal" (Matterof Byer v Jackson, 241 AD2d 943, 944-945 [1997]). Because the Trooper who stoppedpetitioner's vehicle testified at the hearing before the ALJ that his only basis for the traffic stop was thealleged violation of Vehicle and Traffic Law § 1162, we conclude that the determination must beannulled. Present—Martoche, J.P., Carni, Green, Pine and Gorski, JJ.