Opinion
KA 03-00978.
November 21, 2003.
Appeal from an order of Supreme Court, Erie County (Buscaglia, J.), entered May 27, 2003, which granted defendant's motion to suppress evidence and dismissed the indictment.
Frank J. Clark, District Attorney, Buffalo (Paul J. Williams, III, of Counsel), for Plaintiff-Appellant.
Steiner Blotnik, Buffalo (Michael M. Blotnik of Counsel), for Defendant-Respondent.
Before: Present: Green, J.P., Wisner, Hurlbutt, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On this appeal pursuant to CPL 450.20, the People contend that Supreme Court erred in determining that the police lacked reasonable suspicion to stop defendant's vehicle and thus erred in granting defendant's motion to suppress the evidence obtained subsequent to that stop and in dismissing the indictment. We reject that contention. The lack of a license plate on a vehicle generally will justify a stop of the vehicle for violation of Vehicle and Traffic Law § 402 ( see People v. Peart, 283 A.D.2d 14, 15-16, lv dismissed sub nom. People v. Chang, 96 N.Y.2d 939; People v. Johnson, 178 A.D.2d 549, 550, lv denied 79 N.Y.2d 920; People v. Sherman, 106 A.D.2d 416, 416-417). Here, however, upon stopping defendant's vehicle, the officer observed that it had a Florida rear license plate and realized that no front plate was required. A mistake of fact, but not a mistake of law, may be used to justify a search and seizure ( see People v. Gonzalez, 88 N.Y.2d 289, 295; Matter of Byer v. Jackson, 241 A.D.2d 943, 944-945; People v. Roberts, 196 A.D.2d 665, 666; Johnson, 178 A.D.2d at 550). Because the officer admittedly realized his mistake before approaching defendant ( see People v. Perez, 149 A.D.2d 344, 345; cf. Johnson, 178 A.D.2d at 550), the officer's observations following the unlawful stop were properly suppressed as the unattenuated by-product of the stop ( see People v. Brooks, 266 A.D.2d 864; People v. Nicodemus, 247 A.D.2d 833, 836, lv denied 92 N.Y.2d 858; see generally People v. William II, 98 N.Y.2d 93, 98; People v. Banks, 85 N.Y.2d 558, 562-563, cert denied 516 U.S. 868).