motivation test in New York

2000The Third Department has continued its analysis of pretextual stops using the primary motivation test (see, e.g., People v Peterson, 245 AD2d 815 ; People v Grow, 249 AD2d 686 ).

2000The Third Department has continued its analysis of pretextual stops using the primary motivation test (see, e.g., People v Peterson, 245 AD2d 815 ; People v Grow, 249 AD2d 686 ).

2000The Third Department has continued its analysis of pretextual stops using the primary motivation test (see, e.g., People v Peterson, 245 AD2d 815 ; People v Grow, 249 AD2d 686 ).

2000The Third Department has continued its analysis of pretextual stops using the primary motivation test (see, e.g., People v Peterson, 245 AD2d 815 ; People v Grow, 249 AD2d 686 ).

2000Having said all that, the Court of Appeals, in view of the Whren decision ( 517 US 806 , supra), has yet to undertake a constitutional analysis of the primary motivation test for determining pretextual stops.

1998In the Third Department, post -Whren rulings have likewise continued to apply the primary motivation test, and have done so without any attempt to analyze or distinguish Whren (supra) and, indeed, without reference to it.

2000Most recently, however, in People v Robinson ( 271 AD2d 17, 24 ), the First Department expressly opted to “adopt and follow the Federal view that the subjective reason of the police for stopping an automobile is irrelevant in ascertaining probable cause as long as the stop was reasonable.” The Second Department appears to have adopted the position that the objective test enunciated in Whren is controlling (see, e.g., People v McCoy, 239 AD2d 437 ; People v Dougherty, 251 AD2d 344 ; People v Henry, 258 AD2d 473 ; People v Leon, 264 AD2d 784 ; People v Ortiz, 265 AD2d 579 ; People v King, 266 AD

1998(See, e.g., People v Grow, 249 AD2d 686 [3d Dept 1998]; People v Peterson, 245 AD2d 815 , supra; People v Young, 241 AD2d 690, 692 [3d Dept 1997]; People v Tillie, 239 AD2d 670, 672 [3d Dept 1997]; People v Lamb, 235 AD2d 829 [3d Dept 1997].) The Second Department, on the other hand, has been viewed as having adopted the Federal standard in People v McCoy ( 239 AD2d 437 [2d Dept 1997]; see, e.g., People v Cruz, NYLJ, Aug. 28, 1997, at 25, col 4 [Sup Ct, Queens County, Roman, J.]; People v Ruocco, NYLJ, Mar. 9, 1998, at 34, col 4 [Nassau County Ct, DeRiggi, J.]).

1999(See, e.g., People v Califano, 255 AD2d 701 [3d Dept 1998]; People v Grow, 249 AD2d 686 [3d Dept 1998]; People v Peterson, 245 AD2d 815 [3d Dept 1997]; People v Young, 241 AD2d 690 [3d Dept 1997]; People v Tillie, 239 AD2d 670, 672 [3d Dept 1997]; People v Lamb, 235 AD2d 829 [3d Dept 1997].) Accordingly, this court must look to the primary motivation of the police policy as well as the actions of the police on September 27, 1998.

1998(See, e.g., People v Grow, 249 AD2d 686 [3d Dept 1998]; People v Peterson, 245 AD2d 815 , supra; People v Young, 241 AD2d 690, 692 [3d Dept 1997]; People v Tillie, 239 AD2d 670, 672 [3d Dept 1997]; People v Lamb, 235 AD2d 829 [3d Dept 1997].) The Second Department, on the other hand, has been viewed as having adopted the Federal standard in People v McCoy ( 239 AD2d 437 [2d Dept 1997]; see, e.g., People v Cruz, NYLJ, Aug. 28, 1997, at 25, col 4 [Sup Ct, Queens County, Roman, J.]; People v Ruocco, NYLJ, Mar. 9, 1998, at 34, col 4 [Nassau County Ct, DeRiggi, J.]).

2001Thus, we are unanimous in our view that the primary motivation test is not, and should not be, part of our State constitutional jurisprudence. *351 Defendants, however, point to several of our cases—most notably People v Spencer ( 84 NY2d 749 [1995])—and contend that we have previously indicated our disapproval of pretextual police conduct.

2001Defendants, however, point to several of our cases — most notably People v Spencer ( 84 NY2d 749 [1995]) — and contend that we have previously indicated our disapproval of pretextual police conduct.

2000To be sure, it has been proffered, and this court readily acknowledges, that the authority to interpret State constitu tional provisions so as to confer additional protections upon citizens of this State than afforded under the Federal Constitution is vested in the Court of Appeals (see, People v Keta, 165 AD2d 172, 177-178 , revd on other grounds 79 NY2d 474 , supra).

2000In so ruling, the court determined that vehicular traffic stops must be nonpretexual and that the standard for assessing whether a stop is nonpretextual is a primary motivation test, citing People v Dickson ( 180 Misc 2d 113, 114 ).

2000To the contrary, in People v Dickson ( 180 Misc 2d 113 ) the court therein decided the facts presented using the primary motivation test which, by its estimation, “New York courts have either explicitly or implicitly employed” (at 117) and is an approach “consistent with the policies which have long served as an underpinning of New York’s constitutional protections” (at 121).

2000To be sure, it has been proffered, and this court readily acknowledges, that the authority to interpret State constitu tional provisions so as to confer additional protections upon citizens of this State than afforded under the Federal Constitution is vested in the Court of Appeals (see, People v Keta, 165 AD2d 172, 177-178 , revd on other grounds 79 NY2d 474 , supra).

2000Initially, that Court, in reliance upon its own prior decisions and the subjective test for determination of the validity of traffic stops adopted by New York courts, applied the primary motivation standard (see, e.g., People v Washington, 238 AD2d 43 ; People v Martinez, 246 AD2d 456 ).

2000Initially, that Court, in reliance upon its own prior decisions and the subjective test for determination of the validity of traffic stops adopted by New York courts, applied the primary motivation standard (see, e.g., People v Washington, 238 AD2d 43 ; People v Martinez, 246 AD2d 456 ).

2000Most recently, however, in People v Robinson ( 271 AD2d 17, 24 ), the First Department expressly opted to “adopt and follow the Federal view that the subjective reason of the police for stopping an automobile is irrelevant in ascertaining probable cause as long as the stop was reasonable.” The Second Department appears to have adopted the position that the objective test enunciated in Whren is controlling (see, e.g., People v McCoy, 239 AD2d 437 ; People v Dougherty, 251 AD2d 344 ; People v Henry, 258 AD2d 473 ; People v Leon, 264 AD2d 784 ; People v Ortiz, 265 AD2d 579 ; People v King, 266 AD

2000Most recently, however, in People v Robinson ( 271 AD2d 17, 24 ), the First Department expressly opted to “adopt and follow the Federal view that the subjective reason of the police for stopping an automobile is irrelevant in ascertaining probable cause as long as the stop was reasonable.” The Second Department appears to have adopted the position that the objective test enunciated in Whren is controlling (see, e.g., People v McCoy, 239 AD2d 437 ; People v Dougherty, 251 AD2d 344 ; People v Henry, 258 AD2d 473 ; People v Leon, 264 AD2d 784 ; People v Ortiz, 265 AD2d 579 ; People v King, 266 AD

2000Most recently, however, in People v Robinson ( 271 AD2d 17, 24 ), the First Department expressly opted to “adopt and follow the Federal view that the subjective reason of the police for stopping an automobile is irrelevant in ascertaining probable cause as long as the stop was reasonable.” The Second Department appears to have adopted the position that the objective test enunciated in Whren is controlling (see, e.g., People v McCoy, 239 AD2d 437 ; People v Dougherty, 251 AD2d 344 ; People v Henry, 258 AD2d 473 ; People v Leon, 264 AD2d 784 ; People v Ortiz, 265 AD2d 579 ; People v King, 266 AD

2000Most recently, however, in People v Robinson ( 271 AD2d 17, 24 ), the First Department expressly opted to “adopt and follow the Federal view that the subjective reason of the police for stopping an automobile is irrelevant in ascertaining probable cause as long as the stop was reasonable.” The Second Department appears to have adopted the position that the objective test enunciated in Whren is controlling (see, e.g., People v McCoy, 239 AD2d 437 ; People v Dougherty, 251 AD2d 344 ; People v Henry, 258 AD2d 473 ; People v Leon, 264 AD2d 784 ; People v Ortiz, 265 AD2d 579 ; People v King, 266 AD

2000Deferring to the “more stringent New York precedent,” the Fourth Department has declined to apply the objective standard set forth in Whren (see, People v Perruccio, 267 AD2d 1082, 1083 , lv denied 94 NY2d 905 ).

2000Most recently, however, in People v Robinson ( 271 AD2d 17, 24 ), the First Department expressly opted to “adopt and follow the Federal view that the subjective reason of the police for stopping an automobile is irrelevant in ascertaining probable cause as long as the stop was reasonable.” The Second Department appears to have adopted the position that the objective test enunciated in Whren is controlling (see, e.g., People v McCoy, 239 AD2d 437 ; People v Dougherty, 251 AD2d 344 ; People v Henry, 258 AD2d 473 ; People v Leon, 264 AD2d 784 ; People v Ortiz, 265 AD2d 579 ; People v King, 266 AD

1999(See, e.g., People v Califano, 255 AD2d 701 [3d Dept 1998]; People v Grow, 249 AD2d 686 [3d Dept 1998]; People v Peterson, 245 AD2d 815 [3d Dept 1997]; People v Young, 241 AD2d 690 [3d Dept 1997]; People v Tillie, 239 AD2d 670, 672 [3d Dept 1997]; People v Lamb, 235 AD2d 829 [3d Dept 1997].) Accordingly, this court must look to the primary motivation of the police policy as well as the actions of the police on September 27, 1998.

1984Moreover, in criminal prosecutions, there are constitutional limitations on exclusion of evidence favorable to an accused (US Const, 6th, 14th Arndts; NY Const, art I, § 6; Chambers v Mississippi, 410 US 284 ; Pettijohn v Hall, 599 F2d 476, 480, cert den 444 US 946 ; People v Simone, 59 AD2d 918, 919-920 ).

1984While the motivation for that requirement appears to be a fear of perjured testimony, such a danger is present with all testimony and, as Professor Wigmore cogently observed, “any rule which hampers an honest man in exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an innocent” (5 Wigmore, Evidence [Chadbourn rev], § 1477, p 359; see, also, McCormick, Evidence [2d ed], § 278, p 674; dissenting opn of Holmes, J., in Donnelly v United States, 228 US 243, 277-278 ; People v Edwards, 396 Mich 551 ).

1984Moreover, in criminal prosecutions, there are constitutional limitations on exclusion of evidence favorable to an accused (US Const, 6th, 14th Arndts; NY Const, art I, § 6; Chambers v Mississippi, 410 US 284 ; Pettijohn v Hall, 599 F2d 476, 480, cert den 444 US 946 ; People v Simone, 59 AD2d 918, 919-920 ).

1984While the motivation for that requirement appears to be a fear of perjured testimony, such a danger is present with all testimony and, as Professor Wigmore cogently observed, “any rule which hampers an honest man in exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an innocent” (5 Wigmore, Evidence [Chadbourn rev], § 1477, p 359; see, also, McCormick, Evidence [2d ed], § 278, p 674; dissenting opn of Holmes, J., in Donnelly v United States, 228 US 243, 277-278 ; People v Edwards, 396 Mich 551 ).

1984Moreover, in criminal prosecutions, there are constitutional limitations on exclusion of evidence favorable to an accused (US Const, 6th, 14th Arndts; NY Const, art I, § 6; Chambers v Mississippi, 410 US 284 ; Pettijohn v Hall, 599 F2d 476, 480, cert den 444 US 946 ; People v Simone, 59 AD2d 918, 919-920 ).