The Defendant is charged with driving while intoxicated per se, failing to properly signal a turn and failing to stop for a stop sign, in violation of VTL §§ 1192(2), 1163(b), and 1172(a).

On July 8, 2013, this court (Engel, J.) conducted a Mapp/Dunaway/Huntley ^[FN1] hearing, resulting in a Decision and Order dated August 12, 2013, denying the Defendant's motion to suppress in its entirety.

The Defendant now moves to reargue that motion, and, upon reargument, to suppress any and all evidence obtained from the stop of the Defendant. The People oppose the motion.

A motion to reargue is addressed to the discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or misapplied the law or for some other reason improperly decided the prior motion. CPLR §2221(d)(2); Foley v. Roche, 68 AD2d 558, 418 N.Y.S.2d 588 (1st Dept. 1979); Collins v. Stone, 8 AD3d 321, 778 N.Y.S.2d 79 (2nd Dept. 2004).

The Defendant argues that "the Court, most respectfully, recited several inaccuracies in it Decision. First that the unidentified, unknown witness had identified the Defendant, and second, that the Defendant was a combatant in a fight. This misstatement of the facts, coupled with in (sic) an incomplete analysis of the law led to the Court's incorrect conclusion that the testimony of Officer Jandovitz supported a lawful stop of the Defendant." (Feinman Affirmation 10/23/13, ¶ 8)

As to the alleged misapprehension of the facts, the Defendant argues that the witness [*2]"NEVER gave a description of the Defendant[,]" [emphasis in original], (Feinman Affirmation 10/23/13, ¶ 9) although he acknowledges that the witness, in a face-to-face encounter with Officer Jandovitz, identified the driver of a van (the Defendant) leaving the scene of a reported bar fight, as someone who was " in' or involved' in a fight." (Feinman Affirmation 10/23/13, ¶ 9) The Defendant also argues that "there is no testimony as to the kind of fight that the Defendant was allegedly involved in." (Feinman Affirmation 10/23/13, ¶ 10) Specifically, the Defendant queries, "Was the fight a physical altercation, was it verbal, was it mere pushing and shoving or was a weapon used?" (Feinman Affirmation 10/23/13, ¶ 10)

Relying on Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509 (1964), Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584 (1969), Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375 (2000); People v. Parris, 83 NY2d 342 (1994); People v. Phillips, 225 AD2d 1043 (4th Dept. 1996) and People v. Jackson, 2011 WL 1431983 (S.D.NY 2011) the Defendant argues that court misapplied the law. Specifically, the Defendant argues that the court failed to properly apply the Aguilar-Spinelli test of reliability and basis of knowledge to the information provided by the individual at the scene of the alleged bar fight before stopping the Defendant's van to investigate his participation in the alleged fight.

The Defendant has set forth a detailed, coherent and comprehensive argument addressing the facts allegedly misapprehended and the law allegedly misapplied by the court. Based thereon, the court grants that branch of the Defendant's motion which seeks to reargue the court's prior decision rendered following the Mapp/Dunaway/Huntley hearing. Upon such reargument, for all of the reasons discussed below, the court adheres to its original determination, denying the Defendant's motion to suppress in its entirety.

The court has thoroughly and carefully read and examined each of the cases relied upon by the Defendant and find them to be inapposite to, and readily distinguishable from, the facts of the matter before the court. Aguilar v. State of Texas, supra., Spinelli v. United States, supra. and People v. Parris, supra. address the sufficiency of an informant's tip in providing probable cause; they do not address the sufficiency of same as it relates to reasonable suspicion. Florida v. J.L., supra. and People v. Jackson, supra. involve the sufficiency of information received from an anonymous telephone call, not a face-to-face encounter with an identifiable private citizen. Similarly, People v. Phillips, supra. does not involve a face-to-face encounter with an identifiable private citizen in close spacial and temporal proximity to the alleged illegal conduct, but involves speculative information provided by fellow officer a week prior to the encounter with the defendant.

As noted by the court in the original Decision and Order, the issue before the court is not whether "the police arrested, searched and seized the Defendant without probable cause[,]" (Feinman Affirmation 10/23/13, ¶ 1) as suggested by the Defendant, but whether or not there was "a reasonable suspicion that [the vehicle's] occupants had been, are then, or are about to be, engaged in conduct in violation of law ...." People v. Sobotker, 43 NY2d 559, 402 N.Y.S.2d 993 (1978); See also: People v. Spencer, 84 NY2d 749, 622 N.Y.S.2d483 (1995) cert. denied 516 U.S. 905, 116 S.Ct. 271 (1995); People v. May, 81 NY2d 725, 727, 593 N.Y.S.2d 760(1992); People v. Holmes, 81 NY2d 1056, 601 N.Y.S.2d 459 (1993); People v. Shuler, 98 AD3d 695, 949 N.Y.S.2d 758 (2nd Dept. 2012)

Contrary to the Defendant's argument, "[b]ecause the officers needed only a reasonable suspicion and not probable cause to justify the initial stop of the defendant's vehicle, it was not necessary to meet the test for probable cause defined in People v. Elwell, 50 NY2d 231, 428 [*3]N.Y.S.2d 655, 406 N.E.2d 471 ...." People v. Colucci, 268 AD2d 531, 532, 701 N.Y.S.2d 446, 447 (2nd Dept. 2000); See also: People v. Legette, 244 AD2d 505, 507, 664 N.Y.S.2d 606, 608 (2nd Dept. 1997) ["The Aguilar-Spinelli' test, as framed in People v. Elwell (supra), need not be satisfied where the necessary predicate for justifying the police action under review is the less demanding standard of reasonable suspicion."]; People v. Argyris, 99 AD3d 808, 952 N.Y.S.2d 254 (2nd Dept. 2012)

As noted in Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416 (1990):

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

See also: People v. Herold, 282 AD2d 1, 726 N.Y.S.2d 65 (1st Dept. 2001) lv. den. 97 NY2d 682, 738 N.Y.S.2d 298 (2001); People v. Brown, 288 AD2d 152, 733 N.Y.S.2d 182 (1st Dept. 2001) lv. den. 97 NY2d 727, 740 N.Y.S.2d 700 (2002) In reiterating this principle, the Court of Appeals, in People v. Moore, 32 NY2d 67, 69, 343 N.Y.S.2d 107, 110 (1973) cert. den. 414 U.S. 1011, 94 S.Ct. 376 (1973), noted:

There is, however, no ready test for determining reasonableness. Rather, a balance must be struck between the need to seize (or stop) and the invasion which the seizure (stop) entails. (citations omitted). In the final analysis, the test is whether the facts available to the officer at the moment of the seizure would warrant a person of reasonable caution in believing that the action taken was appropriate.

"The reliability of an identifiable citizen is inherent and presumed (citations omitted)." People v. Battest, 168 AD2d 958, 959, 564 N.Y.S.2d 910, 911 (4th Dept. 1990) lv. den. 77 NY2d 958, 570 N.Y.S.2d 491 (1991); See also: People v. Roberson, 186 AD2d 1014, 588 N.Y.S.2d 469 (4th Dept. 1992) lv. den. 81 NY2d 793, 594 N.Y.S.2d 740 (1993); People v. Hart, 4 Misc 3d 105, 782 N.Y.S.2d 510 (App. Div. 9th & 10th Jud. Dists. 2004) It has been recognized that when the information is imparted in a face-to-face encounter with the police, the informant's reliability is enhanced. See: People v. Wallace, 89 AD3d 559, 933 N.Y.S.2d 13 (1st Dept. 2011); People v. Rios, 11 AD3d 641, 782 N.Y.S.2d 863 (2nd Dept. 2004); People v. Reyes, 308 AD2d 422, 764 N.Y.S.2d 691 (1st Dept. 2003) lv. den. 1 NY3d 578, 775 N.Y.S.2d 795 (2003) "Even in instances where the informant is unidentified where the police have had a face to face confrontation with the informant, and have had an opportunity to evaluate his or her reliability, such information, while not rising to the level of probable cause, may provide the reasonable suspicion necessary for a stop and frisk." People v. DeJesus, 169 AD2d 521, 522, 564 N.Y.S.2d 377, 378 (1st Dept. 1991) lv. den. 169 AD2d 521, 564 N.Y.S.2d 377 (1991)

It is against this legal backdrop that we look at the facts presented at the hearing in this matter. The uncontorverted hearing testimony established that on February 27, 2013, at approximately 6:30 p.m., Officer Jandovitz received a radio call that there was a bar fight at 225 Sea Cliff Avenue. The Defendant does not suggest that there was anything improper in the officer responding to this location to investigate.

Officer Jandovitz immediately responded to the scene, arriving in just twelve (12) minutes. Upon [*4]exiting his vehicle, "on Roslyn Avenue right on the side of the bar," (P 6, L 3-4)^[FN2] Officer Jandovitz was approached by a male, approximately five (5') foot eight (8") inches tall, with black hair, who "pointed out a van that was traveling on Roslyn Avenue" (P 5 L 23) and told the officer "the guy in that white van going down the block is the guy who was in the fight." (P 37 L 6-8) Without asking this individual his name or telephone number, Officer Jandovitz "jumped, got into [his] car, went down the block after the van." (P 6 L 11-12) Officer Jandovitz was concerned "if there is going to be somebody severely injured inside the bar that [his] partner is going to get to, [he] want[ed] to make sure that [he] g[o]t the car that's leaving the scene." (P 38 L 20-23) Approximately two (2) minutes later Officer Jandovizt signaled for the van to pull over, which it did, in the middle of the road, in front of 84 Brown Street.

Officer Jandovitz exited his vehicle and approached the driver's side of the van where he saw the Defendant, alone, seated in the driver's seat. Officer Jandovitz noted that the Defendant appeared very disheveled, had some abrasions on his head and face, had a strong odor of an alcoholic beverage on his breath and had slurred speech. During a conversation with Officer Jandovitz at that time, regarding the bar fight, the Defendant stated that he was involved in a fight at a bar with a guy he knew for many years. The Defendant also stated that he had a few drinks.

Officer Jandovitz then asked the Defendant to exit his van. Following the performance of standardized field sobriety tests ("SFSTs"), and the observation of numerous clues of intoxication, Officer Jandovitz concluded that the Defendant was intoxicated and placed him under arrest at 6:59 p.m.

In People v. Odom, 50 AD2d 936, 377 N.Y.S.2d 597 (2nd Dept. 1975), a case strikingly similar to the matter sub judice, shortly after responding to a radio communication, which directed him to a particular location, the officer was promptly informed that a fight had just taken place and that one of the participants had a gun; and, when he asked where the participants had gone, "several people in the group pointed to an automobile which was proceeding toward him." Odom, id. at 937, 377 N.Y.S.2d 597, 598 (2nd Dept. 1975) The officer then ordered the car to stop, frisked the driver and searched the interior of the car, where he found a gun. In reversing the trial court's order suppressing the gun, the Appellate Division found that the vehicle was properly stopped and searched based upon, inter alia, the fact that the "officer was informed that a fight had recently taken place and ... he was specifically directed to the occupants of a nearby car. His actions in ordering the car stopped and his search of one of the defendants and of the car were in the presence and proximity of the informants and were based on probable cause (citation omitted)." Odom, id. at 937, 377 N.Y.S.2d 597, 598 (2nd Dept. 1975)

While there was a gun present in Odom, id., a factor not present in the matter before this court, that fact was not dispositive of the issue. According to the majority in Odom, id., it was the report of the presence of a gun which supported the frisk and search in that case. There is no frisk or search in the matter sub judice. Moreover, as is relevant to the issues in this matter, the stop in Odom, id. was justified based upon nothing more than a radio communication and the identification of the occupants of a moving vehicle, by identifiable, although not identified, citizen informants as participants in a recently reported fight. It should be further noted that even the dissent does not question that was a legal basis for the stop of the vehicle; the dissent only disagrees with the majority's finding of probable cause for the search of the defendants' vehicle. [*5]

Similarly, in In re Jahloni G., 83 AD3d 485, 921 N.Y.S.2d 49 (1st Dept. 2011)the court found that there was reasonable suspicion to stop the Defendant based upon a radio report and identifiable, but unidentified, bystanders pointing to the defendant and other boys, stating only, "That's them." A similar scenario was presented in People v. Briggs, 286 AD2d 270, 729 N.Y.S.2d 138 (1st Dept. 2001), wherein the court found reasonable suspicion to stop and detain the defendant upon a citizen informant pointing to two men on a bicycle he had been chasing and indicating that they had robbed a store at a particular location.

The common denominator in those cases, as well as the matter before this court, is that the information upon which the officers acted in stopping the defendants was relayed "in a face-to face meeting with experienced officers ... who had an opportunity to evaluate [their] reliability on the basis of appearance and demeanor, factors crucial to any such assessment' (citation omitted)." People v. Castro, 115 AD2d 433, 435, 497 N.Y.S.2d 1, 2 (1st Dept. 1985) aff'd 68 NY2d 850, 508 N.Y.S.2d 407 (1986) [informant was an arrestee previously unknown to the officers who escaped from their custody before they could ascertain his name] Contrary to the Defendant's argument, the failure of Officer Jandoviz to obtain the identifiable citizen's name before stopping the Defendant's van does not vitiate the reasonable suspicion provided by that citizen informant. See: People v. Miles, 210 AD2d 353, 620 N.Y.S.2d 13 (2nd Dept. 1994); People v. Rios, supra.; People v. Hart, supra.; In re Jahloni G., supra.; People v. Briggs, supra. As noted by the Court of Appeals, in similar circumstances, "While it is unfortunate that the foot patrolman had neither the time before nor the opportunity later to obtain the identity of the passerby or the co-operation of the bar patrons, who witnessed defendant's prior behavior, his pre-arrest procedure [stop and frisk] was not only permissible but mandatory in view of the complaints made to him." People v. Arthurs, 24 NY2d 688, 692, 301 N.Y.S.2d 614, 618 (1969) As confirmed by Officer Jandovitz, and as was true in People v. Colon, 95 AD3d 420, 942 N.Y.S.2d 542, 543 (1st Dept. 2012), "[i]t was only the urgency of the situation that prevented the police from obtaining the witness's name and contact information (citation omitted)."

It is also the "face-to-face" nature of the encounter between Officer Jandovitz and the identifiable citizen informant which readily distinguishes this case from Florida v. J.L., upon which the Defendant relies. In that case, unlike the matter sub judice, the tip was provided by "a call made from an unknown location by an unknown caller."Florida v. J.L., id. at 270, 120 S.Ct. 1375, 1378 (2000) This is a far cry from the situation presented in the present matter, where "the informant imparted the information in a face-to-face encounter, thereby enhancing his reliability (see People v. Appice, 1 AD3d 244, 767 N.Y.S.2d 765 [2003]; lv. denied 1 NY3d 594, 560, 776 N.Y.S.2d 226, 808 N.E.2d 362 [2004])." People v. Wallace, supra. at 560, 933 N.Y.S.2d 13, 15 (1st Dept. 2011); See also: People v. Castro, supra.

Based upon all of the foregoing, given the brief period of time which transpired between Officer Jandovitz's receipt of the radio run regarding a bar fight and his arrival at that scene, along with an identifiable citizen's immediate identification of the Defendant, who was still present at the scene, as one of the combatants in the reported fight, the court finds that Officer Jandovitz possessed a reasonable suspicion sufficient to justify the initial stop of the Defendant's van.

Accordingly, the court adheres to its original determination denying the Defendant's motion to suppress in its entirety.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

December 12, 2013 [*6]

___________________________

ANDREW M. ENGEL

J.D.C.