Defendant/appellant Michael Bonaccorso appeals his conviction on two counts of Driving While Intoxicated (VTL §§1192[2], [3]), entered in East Rochester Town Court (Monachino, J.) on February 22, 2018. He argues that 1) his vehicle was stopped without requisite cause, requiring suppression of all derivative evidence, and 2) his jury trial waiver was invalid and therefore the conviction should be vacated.For the reasons below, the appeal is GRANTED, the decision and judgment of the East Rochester Town Court is REVERSED, and the action dismissed.SuppressionDefendant moved for and was granted a combined probable cause (or Ingle) and Huntley hearing, which was held on July 24, 2017. The People called East Rochester Police Officer EarlLergner to testify as to the circumstances regarding the initial encounter with the defendant.Lergner testified that he was operating his marked patrol vehicle at 12:38 a.m. and was “turning onto West Elm from Main Street and then I observed the vehicle (inaudible) of the roadway.”He was asked what the “lines are like on the road in that — location,” Lergner replied that “it is an unmarked east/west road,” meaning no lines. At no time did Lergner activate his siren. His headlights were on.Asked, “Did there come a time where you stopped the vehicle?” Lergner replied, “The vehicle, actually, when they saw my headlights behind it, pulled over.”The vehicle, which according to Lergner had been travelling in the “middle of the road,” pulled over without incident to the right side of the road.Lergner approached the vehicle, asked the driver for his license and registration, and made several observations that raised the suspicion that the driver had been driving while intoxicated, notably, that his speech was slurred, his eyes glassy, he exhibited an odor of alcohol on his breath, and he had difficulty getting his license and registration.After putting the defendant through several field sobriety tests, Lergner formed the opinion that the defendant was intoxicated and placed him under arrest for a violation of Vehicle and Traffic Law §1192(3), Driving While Intoxicated. He also wrote him a ticket for Unsafe Lane Change, a violation of VTL §1128(a).On motion to suppress evidence, the People bear the initial burden of going forward with evidence tending to demonstrate a lawful rationale for police conduct, and the defendant has the ultimate burden of proving a lack of legal basis for the police action by a preponderance of the evidence (see People v. Berrios, 28 NY2d 361 [1971]; People v. Malinsky, 15 NY2d 86, [1965]; People v. Defrain, 204 AD2d 1002 [4th Dept 2004]); People v. Milhouse, 246 AD2d 119 [1st Dept 1984]).A traffic stop is constitutionally permissible if the officer has probable cause to believe the driver committed a traffic violation (People v. Guthrie, 25 NY3d 130 [2015]). The relevant inquiry is not the officer’s good faith belief that the defendant violated the Vehicle and Traffic Law, but rather, whether his belief that a traffic violation had occurred was “objectively reasonable” (People v. Gurthrie at 134).Here the People failed to sustain their burden. There was no testimony as to the width of the road, whether there were cars parked on either side, or whether there was even space for the defendant to drive other than in the middle of the road. Accordingly, it cannot be concluded that there was an objectively valid reason — based on either reasonable suspicion or probable cause — for the officer to pull up behind the defendant with his headlights on in a marked patrol vehicle and cause the defendant to pull over to the side of the road. The charge of Unsafe Lane Change, which requires as an element marked lanes of traffic, and which was rightly dismissed by the trial court, was a pretext to justify an otherwise impermissible stop.The People argue that there was no stop or seizure of the defendant, that the defendant pulled over voluntarily, not as a result of police action, and since the officer did not activate his siren (there was no testimony regarding overhead flashing lights), all that was required for the officer to approach the defendant’s stopped vehicle was an “objective credible reason, not indicative necessarily of criminality” (see People v. Holman, 79 NY2d 181, 185 [1992], People v. Harrison, 57 NY2d 470, 475-476 [1982]).The court disagrees. First of all, this was not an argument advanced by the People following the close of the hearing (the prosecutor urged the trial court to find that there was “probable cause” for a “stop”) and the court declines to exercise its discretion to review it (see People v. Turriago, 90 NY2d 77, 84 [1997]).Secondly, even if the court were to review the issue, and assuming that the officer did not effectuate a stop or seizure, no objective reason has been put forward to justify the officer’s approach to the vehicle (see e.g. People v. Harrison, 57 NY2d 470, 475 [1982]: “All that is required is an articulable basis, which in this case was supplied by the extremely dirty condition of the defendants’ rental car”). Pulling over to the side of the road upon seeing headlights close behind in one’s rearview mirror does not qualify as an “articulable basis” to justify an officer’s approach. Equally and objectively plausible is that the defendant was simply trying to get out of the way of a closely-following vehicle. As noted above, the observation that the officer made of the defendant driving down the middle of the road in violation of some provision of the Vehicle and Traffic Law was not, on the basis of the evidence elicited at trial, objectively reasonable. Defendant operated his vehicle and pulled over to the side of the road in a manner that raised no issue whatsoever.Accordingly, all fruits of the unlawful stop must be suppressed and all charges consequently dismissed (Nardone v. United States, 308 US 338 [1939]; Wong Sun v. US, 371 US 471; People v. Williams, 191 AD2d 989 [4th Dept 1993]).Waiver of Jury TrialIn light of the decision above, the validity of the defendant’s waiver of a jury trial is moot.The Appeal is GRANTED and the judgment of the East Rochester Town Court convicting the defendant/appellant of Driving While Intoxicated, Vehicle and Traffic Law §§1192[2], [3] is REVERSED. The charges are dismissed.This constitutes the DECISION and ORDER of the Court.Dated: May 3, 2019Rochester, New York
