Procedural History

Defendant Pedro Sanchez ("Defendant Sanchez") is charged by information with violating Penal Law ("PL") § 120.20 — Reckless endangerment 2°; Vehicle and Traffic Law ("VTL") § 1192 — Operating a motor vehicle while under the influence of alcohol or drugs, specifically VTL §§ 1192[3] and [2], class A misdemeanors; and VTL § 1212 — Reckless driving, an unclassified misdemeanor.

By Notice of Omnibus Motion dated December 6, 2024, Defendant Sanchez moved, inter alia, to preclude at trial evidence of Defendant's prior bad acts and suppress all evidence related to Defendant's chemical breath test, tangible evidence, and statements made by Defendant for which People served proper notice (CPL § 710.30[1][a]). In the alternative, Defendant sought pre-trial suppression hearings, to wit, Huntley/Dunaway/Ingle/Johnson/Mapp/Atkins/Sandoval/Ventimiglia. By order dated January 31, 2025, Hon. E. Deronn Bowen granted Defendant's motion to the extent that the following hearings be conducted: Dunaway/Huntley/Mapp/Atkins. Sandoval and Ventimiglia ^[FN1] matters were referred to the trial court.

The suppression hearings commenced on March 11, 2025 and continued March 13. Based on the testimony and evidence presented, the Court finds that the stop of Defendant Sanchez's vehicle was unlawful, and his arrest was not supported by probable cause.

The People called Police Officer Karen Reyes Leon. Defense counsel cross-examined the witness. Defendant Sanchez neither testified nor presented any witnesses.

Officer Reyes Leon testified that she has served as an NYPD police officer for one year and seven months and has been assigned to patrol the 44th Precinct for the past eleven months. She received training from the Police Academy on how to detect signs of intoxication and conduct a chemical breath test. Officer Reyes Leon has made a total of twenty-four arrests, one of which involved driving while under the influence; she has participated or assisted in approximately forty-five arrests. She has been a Spanish speaker for twenty-three years; she can read and write in Spanish; and her parents are Spanish speakers. Officer Reyes Leon and Defendant Sanchez communicated in Spanish.

On June 2, 2024, at approximately 8:57PM, Officer Reyes Leon and her partner were assigned to a footpost in the vicinity of East 166th Street and Findlay Avenue to provide police presence and address matters as necessary. The weather was clear, and the area was illuminated by streetlights. Officer Reyes Leon's body-worn camera ("BWC") was in "good working order" (tr I ^[FN2] at 22). While directing drivers of double-parked cars to move, Officer Reyes Leon observed a vehicle driven by an unnamed driver stopped in front of Defendant's vehicle. The unnamed driver exited her vehicle and confronted Defendant, "cursing obviously out of anger" (tr I at 23) and "screaming at him" (tr I at 38). In doing so, the unnamed driver "had stopped traffic" and then told the officers that Defendant "was tailgating her, ran the stop sign, and almost hit kids" (id.). Officer Reyes Leon told the unnamed driver to get back into her vehicle and directed Defendant to pull over.

Officer Reyes Leon approached Defendant Sanchez's vehicle and "knocked on his window to [roll] down the window to speak to him" (tr I at 25). The officer testified that when Defendant rolled down his window, she and her partner smelled an odor of alcohol emanating from the vehicle. She also testified that when Defendant rolled down his back window, she "noticed . . . he had a grill back there. He had things that he was coming from a barbecue [sic]. So I was just trying to piece all the pieces together" (tr I at 40). Further, Officer Reyes Leon testified that when her partner smelled an odor of alcohol, the encounter became a "car stop" (tr I at 25). Speaking in Spanish, Officer Reyes Leon then asked Defendant whether he had been drinking; he answered no. Officer Reyes Leon's partner asked Defendant for ID, and he produced his driver's license. While speaking with Defendant, Officer Reyes Leon observed him "covering his mouth [and] slurring his speech" (tr I at 29). She also observed Defendant "looking downwards" and testified that "he didn't want to look at me in the eyes" (tr I at 25, 29).

After interacting with Defendant Sanchez, Officer Reyes Leon called her field training officer ("FTO") and patrol supervisor "to come to the scene and verify the arrest" (tr I at 31). When they arrived, she "explained the situation," after which they approached Defendant's [*2]vehicle. Officer Reyes Leon testified that her supervisors attempted to speak with Defendant, but "they didn't know what he was saying" (id.). The supervisors "couldn't make out what he was saying" and therefore directed Defendant to step out of the vehicle, at which point "they smelled the alcohol as well" (id.). Officer Reyes Leon observed Defendant to be "slouching" (id.). The patrol supervisor then pointed his flashlight at Defendant's eyes because he was "looking downwards and he was crossing his arms" (id.) and asked Defendant to look up. Officer Reyes Leon testified that "that's when they saw his eyes were bloodshot" (id.). Defendant was ordered to put his hands behind his back.

After Defendant Sanchez was placed under arrest, Officer Reyes Leon transported him to the 45th Precinct to undergo a chemical breath test. The Highway Officer played a video in Spanish, "asking [Defendant] if he consented to taking a breathalyzer test" (tr I at 32-33). Officer Reyes Leon heard Defendant consent to the test by answering "yes" in Spanish and observed him blow into the intoxilyzer. The result was 0.136, "indicat[ing] that [Defendant] was intoxicated" (tr I at 33).

Defense counsel cross-examined Officer Reyes Leon. June 2, 2024 was the first time that Officer Reyes Leon spoke with Defendant Sanchez. She was unaware of Defendant's normal speech pattern and did not know whether he speaks with a lisp or has any medical conditions. The officer did not examine Defendant's driver's license, but she concluded that "he was an older man" (tr II at 6). Based on Officer Reyes Leon's experience, it is not possible to consume alcohol without being intoxicated.

Turning to the incident, Officer Reyes Leon did not recall observing Defendant run a stop sign, nor did she or her partner issue him a summons for such violation. Officer Reyes Leon confirmed, however, that her partner stated that a summons could not be issued because they did not observe Defendant run a stop sign. The unnamed driver stopped in front of Defendant's vehicle on the one-way street, preventing him from driving forward. When the unnamed driver drove away, Officer Reyes Leon stood in front of Defendant's vehicle and remained in front of his vehicle as she directed him to pull over.

After Officer Reyes Leon stopped Defendant Sanchez, she asked him to roll down his windows, and her partner asked him for his ID. Defendant complied and produced his driver's license. Approximately twenty minutes after Defendant was stopped, supervising officers arrived.

The Court's review of Officer Reyes Leon's BWC footage commences at the beginning of the video (BWC — 20:56:42). Officer Reyes Leon's partner is standing at the front driver side of Defendant's vehicle; the front window is rolled down and the rear of the vehicle is located a short distance away from the crosswalk and intersection. At the intersection directly behind Defendant's vehicle, an NYPD patrol van is present with its turret lights flashing, reflecting on Defendant's face. While appearing to review Defendant's credentials, Officer Reyes Leon's partner tells her to ask Defendant whether he has been drinking. Officer Reyes Leon first objects, stating that Defendant might get defensive, but obliges soon thereafter. Speaking in Spanish, Officer Reyes Leon addresses Defendant; he answers in Spanish and then says, "No." Seconds later, Officer Reyes Leon asks her partner if she wants Defendant to roll down his back windows. Officer Reyes Leon then addresses Defendant in Spanish, at which time he rolls down his back window. Shining her flashlight into Defendant's rear driver side window, Officer Reyes [*3]Leon states that Defendant is "coming from a barbecue." Officer Reyes Leon then asks her partner if she wants to do a sobriety test. Her partner responds, in sum and substance, "Nah, I can't. You have to take him, but it has to be a reason." Officer Reyes Leon replies, "you smelled it," to which her partner adds, "yeah, but that's not," never completing the response.

Officer Reyes Leon and Defendant Sanchez engage in a Spanish-language conversation regarding the stop sign. Among the words spoken, Officer Reyes Leon says "stop sign" twice. Defendant then says, "stop sign," at which time Officer Reyes Leon interjects. The conversation ends with Defendant saying, "stop sign sí, sí," to which Officer Reyes Leon responds, "No."

Officer Reyes Leon asks her partner whether she is writing Defendant a summons. In response, her partner states summarily, "No, he didn't really do anything." Officer Reyes Leon responds, "He blew a stop sign. That was the whole argument — he blew a stop sign." Her partner replies, "Yeah, but we didn't see it."

Following an additional conversation with Defendant, Officer Reyes Leon states to her partner, "He said that he's having trouble with the title of the car, so they gave him a temporary one." Officer Reyes Leon resumes her conversation with Defendant and states to her partner, "he looks a little drunk" and says that it is dangerous for Defendant to be driving. She then remarks that Defendant does not know what he is saying and follows with, "but he's old."

Officer Reyes Leon calls a supervising officer and states, "We stopped a car. He's an older guy; he has like a temporary registration, but his car isn't insured, and he looks like he's drunk" (BWC — 21:05:22). After providing her location, Officer Reyes Leon adds that she thinks Defendant is intoxicated because of the way he is speaking and because "he's just coming from a barbecue." Following the call, Officer Reyes Leon says to her partner, "I don't think he's that fucked up."

The supervising officers ^[FN3] arrive on scene (BWC — 21:11:25), at which time Officer Reyes Leon says, "I don't know if he's intox [sic], but he's like an older guy, but he sound [sic] when I was asking him for his registration." The FTO then asks Officer Reyes Leon, "You smell something, you smell alcohol?" She responds with "umm." Her partner adds, "I did, but." Interjecting, the FTO says, "but what," to which Officer Reyes Leon's partner responds, "I smelled a little bit." Officer Reyes Leon states, "He just came from a barbecue, and then when I asked him questions, he like blurred."

The supervising officers approach Defendant's vehicle, shine a flashlight inside, and ask whether he has been drinking (BWC — 21:11:44). The FTO then walks away and asks Officer Reyes Leon whether she had smelled alcohol (BWC — 21:12:44). She replies, "Yeah, I smelled it. I mean, the way he was talking too." Officer Reyes Leon's partner adds, summarily, "He hit the light, he almost hit kids," prompting the FTO to repeat in question form, "Oh, he hit the light?" Officer Reyes Leon immediately responds, "He hit the lights. He was arguing with some lady." The FTO then beckons to another officer and tells him, "They both smelled alcohol, and he ran a stop sign, and he almost hit kids" (BWC — 21:12:53).

The supervising officers approach Defendant's vehicle again and order him to exit (BWC — 21:13:05). As Defendant exits the vehicle, a long, spring-like cord attached to his pants appears to impede his movement. He then re-opens the vehicle door, retrieves the wallet attached to the cord, closes the vehicle door again, stands upright, and folds his arms as two [*4]officers shine flashlights at him. As approximately seven officers surround Defendant, the FTO shines his flashlight in Defendant's face and then addresses the patrol supervisor (BWC — 21:13:36). The patrol supervisor then says, "It's up to you guys." Officer Reyes Leon responds, "I smell it on him." She then says to her partner, "You don't want to do a sobriety test?" Her partner responds, "Not yet, not yet." Officer Reyes Leon says, "I just smelled it when he came out [of] the car." The patrol supervisor asks Defendant, "Sir, you been drinking tonight?" (BWC — 12:14:04). Defendant immediately responds, "no" while shaking his head from left to right. The officer continues, "Nothing? Not even a little? No?" Defendant continues answering, "no." The officer then says to Defendant, "let me see" and shines his flashlight directly at Defendant's eyes. The FTO looks at Defendant and says, "Yeah." The patrol supervisor follows, saying, "All right, bring him in." The patrol supervisor laughs and orders Defendant to turn around. Officer Reyes Leon handcuffs Defendant (BWC — 12:14:30).

The People bear the initial burden of showing that there was probable cause to arrest the defendant. Probable cause for an arrest exists when "[it] appear[s] to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice" (People v Carrasquillo, 54 NY2d 248, 254 [1981]; see Dunaway v New York, 442 US 200 [1979]). The burden then shifts to the defendant to prove by a preponderance of the evidence that the police acted illegally (People v Berrios, 28 NY2d 361 [1971]).

In People v De Bour, 40 NY2d 210 [1976], the Court of Appeals provides a four-tier analysis for police-civilian encounters. The first level permits a police officer to approach a civilian and request information, provided there is an articulable, objective, and credible reason to do so, not necessarily indicative of criminality. "[A] request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity . . ." (New York v Hollman, 79 NY2d 181, 191 [1992]). Should a "police officer's questions become extended and accusatory and the officer's inquiry focuses on the possible criminality of the person approached, this is not a simple request for information [but] a common-law inquiry" (id.). It must also be understood, however, that the Court of Appeals has recognized and affirmed a person's right to refuse a police officer's request for information and the right to be let alone. See People v May, 81 NY2d 725, 728 [1992] ("[D]efendant's action moving the car slowly away as the police approached could not serve to create a reasonable suspicion of criminality given defendant's right to be let alone and to refuse to respond to police inquiry." [internal citations and quotations omitted]); People v Howard, 50 NY2d 583, 590 ("[W]hile the police had the right to make the inquiry, defendant had a constitutional right not to respond. This is so both because the Fifth Amendment to the United States Constitution and its State counterpart . . . permitted him to remain silent and because the Fourth Amendment and its State counterpart . . . protect him from detention amounting to seizure unless there is probable cause. As Mr. Justice Brandeis put it long ago . . ., defendant had the right to be let alone" [internal citations and quotations omitted]).

Returning to the De Bour analysis, a level two encounter, or common law inquiry, "must [*5]be supported by a founded suspicion that criminal activity is afoot" (id.). The third level permits a police officer to forcibly stop and detain a person when the officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. And finally, the fourth level permits a police officer to arrest and take into custody a person if the officer has probable cause to believe that the person has committed a crime or an offense in his or her presence. An arrest not supported by probable cause is unlawful and therefore invalid, requiring the suppression of any fruits that flow therefrom (see People v Baker 20 NY3d 354 [2013]).

The police had an articulable, objective, and credible reason to request information from Defendant Sanchez. Officer Reyes Leon testified that while she and her partner were at their assigned footpost, an unnamed driver blocked the flow of traffic when she stopped her vehicle on a one-way street and exited to confront Defendant. The unnamed driver was "cursing obviously out of anger" (tr I at 23) and "screaming at [Defendant]" (tr I at 38). And when Officer Reyes Leon responded to the unnamed driver, she accused Defendant of tailgating, running a stop sign, and nearly hitting kids. Officer Reyes Leon asked the unnamed driver to calm down and directed her to leave the scene but assured her that she would speak to Defendant. In that moment, Officer Reyes Leon had an articulable, objective, and credible reason to ask Defendant "briefly about his identity, destination, or reason for being in the area" (Hollman, 79 NY2d at 191). Instead, according to Officer Reyes Leon's testimony, she then stood in front of Defendant's vehicle and directed him to pull over, consequently restricting his movement and/or ability to drive away, thereby not only infringing on his right to refuse any request for information, but escalating the encounter from level one to level three of the De Bour analysis.

A request for information does not automatically rise to a forcible detention when an officer's patrol vehicle restricts a civilian's ability to drive away. In People v Thomas, 19 AD3d 32 [1st Dept 2005], the trial court suppressed tangible evidence, finding that police officers lacked probable cause to believe that a traffic violation had occurred when they "stopped defendant by parking the police van so as to block [him in]" (id. at 34) (internal quotations omitted). In reversing the decision, the First Department held:

Given the congested traffic conditions that prevail in many areas, we cannot conclude that a seizure occurs whenever the police, in stopping their own vehicle for the purpose of making a legitimate approach, incidentally block the path of the car of the person to whom they wish to speak. To hold otherwise, as advocated by [the dissent], would impose on the police a new protocol requiring a motorized officer, in stopping to approach a person in a parked car, to take care to stop the police vehicle in a way that makes it possible for the other driver to pull away. According to [the dissent], any failure to do this, whether intentional or . . . unintentional, transforms the police approach into a level III forcible detention. We decline to adopt this approach (id. at 35-36).

But People v Thomas is distinguishable from the instant matter. A police officer faced with a crowded, one-way street while attempting to request information from a driver—as contemplated by the First Department—may be unable to park his or her patrol vehicle in a manner that does not restrict that driver's movement. In such instance, the restriction might be [*6]deemed unintentional and therefore permissible during a level one encounter. By contrast, a police officer on foot patrol—as is the case here—would not be bound by the same strictures. Therefore, a restriction on movement caused by an officer on foot would be deemed intentional, constituting a forcible stop and detention. Pursuant to De Bour, a forcible stop and detention is not permitted unless the officer has a reasonable suspicion that the civilian has committed, is committing, or is about to commit a crime.

Based on the testimony and evidence presented, neither Officer Reyes Leon nor her partner had witnessed Defendant commit a traffic violation or crime when they forcibly stopped and detained him. Officer Reyes Leon testified that she did not recall whether she observed Defendant run a stop sign. She remembered, however, that her partner said that they could not issue a summons because they did not observe Defendant run a stop sign, an exchange confirmed by Officer Reyes Leon's BWC footage. As Officer Reyes Leon reminded her partner that the unnamed driver confronted Defendant because "he blew a stop [sign]," her partner responded, "Yeah, but we didn't see it." With respect to the tailgating allegation, Officer Reyes Leon's testimony was equivocal. She testified that the unnamed driver informed them that Defendant had been tailgating her. Officer Reyes Leon also implied that she observed Defendant tailgating, testifying: "We saw Pedro and another car in front of her [sic]. He was tailgating her and when she made that right, she stopped her car in front, and she started to dispute and she got out of the car" (tr I at 23). Officer Reyes Leon did not testify that she observed the vehicles in motion; only that the unnamed driver had stopped in front of Defendant's vehicle. Also absent from her testimony was the approximate distance from which Defendant allegedly tailgated the unnamed driver. But even if the officers had observed Defendant tailgating, the facts presented—particularly that the unnamed driver had stopped and exited her vehicle in front of Defendant where other vehicles had been double-parked—would not support a finding that Defendant violated Vehicle and Traffic Law § 1129[a]^[FN4] .

Officer Reyes Leon testified that the encounter became a "car stop" (tr I at 25) when her partner smelled the odor of alcohol. An illegal stop, however, cannot be remedied after the fact by "testimony [that is] tailored to overcome constitutional objections" (People v Rutledge, 21 AD3d 1125, 1126 [2d Dept 2005]). The Court of Appeals has held that whether a stop occurred is to be determined by the fact finder. See People v Ocasio, 85 NY2d 982, 984 [1995] ("Determination whether a seizure occurred here—where the car was neither parked nor moving—requires the fact finder to apply a settled standard: whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom"). Here, an unnamed driver stopped in front of Defendant's vehicle on a residential block; she exited her vehicle and initiated a dispute with Defendant. While "cursing" (tr I at 23) and "screaming" (tr I at 38) at Defendant, the driver accused him of tailgating her, running a stop sign, and most egregiously, nearly hitting kids with his vehicle. Because of that unidentified driver's behavior, Officer Reyes Leon walked to the front of Defendant's vehicle and [*7]directed him to pull over and roll down his window. People's Exhibit 1A commences with Officer Reyes Leon's partner standing at Defendant's door—window rolled down and the reflection of turret lights flashing across his face from an NYPD patrol van positioned in the intersection from which Defendant had just turned. Under these circumstances, a reasonable person would have believed that his or her freedom was significantly limited. Based on the foregoing, the Court finds that Defendant's encounter with the police began at level three, yet the De Bour criteria had not been met.

The encounter then advanced to level four, which permits a police officer to arrest and take into custody a person if the officer has "probable cause to believe that a person has committed a crime or offense in his [or her] presence" (De Bour, 40 NY2d at 223). Probable cause also may exist when an officer "can demonstrate reasonable grounds to believe that the defendant had been driving in violation of [VTL] § 1192" (People v Kowalski, 291 AD2d 669, 670 [3d Dept 2002]). In determining probable cause for violating this provision, "the only valid inquiry . . . is whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor" (People v Farrel, 89 AD2d 987, 988 [2d Dept 1982]). For the reasons set forth below, People failed to establish through the testimony of Officer Reyes Leon and BWC footage how level four of the De Bour analysis was reached.

First, Officer Reyes Leon's testimony was equivocal as to when she smelled an odor of alcohol. Officer Reyes Leon testified that both she and her partner smelled alcohol emanating from Defendant's vehicle and thus asked him whether he had been drinking. A review of her BWC footage suggests otherwise. When asked by her FTO whether she had smelled alcohol, Officer Reyes Leon's response was "umm." Her partner then interjected, telling the supervisor that she had smelled alcohol, but she immediately qualified it as "a little bit." Later, after supervising officers had ordered Defendant out of his vehicle, Officer Reyes Leon stated, "I just smelled it when he came out [of] the car."

Second, Defendant was ordered out of his vehicle on the false premise that Officer Reyes Leon and her partner had observed him run a stop sign and nearly hit kids. Notably, the partner declined to issue Defendant a summons, stating "he didn't really do anything." It is also worth noting here that Officer Reyes Leon told her supervisors that Defendant was "just coming from a barbecue." But the testimony provided indicates that her conclusion was merely postulation. At the hearing, Officer Reyes Leon stated, "So [Defendant] put down the windows in the back. I noticed that . . . he had a grill back there. He had things that [suggested] he was coming from a barbecue. So I was just trying to piece all the pieces together" (tr I at 40). When the supervising officers initially approached Defendant's vehicle, they shone a flashlight into his car, asked him whether he had been drinking, and held a brief conversation with him. The FTO then walked away from the vehicle and spoke again with Officer Reyes Leon and her partner, at which time they accused Defendant of "hit[ting] the lights," "arguing with some lady," and "almost hit[ting] kids." The FTO immediately repeated those accusations to another officer, and seconds thereafter, they approached Defendant's vehicle a second time and ordered him to step out before asking him again whether he had been drinking. Defendant answered, "no."

Finally, Officer Reyes Leon's testimony regarding Defendant's behavior was inconsistent with her BWC footage. She testified that Defendant covered his mouth, slurred his speech, and looked downward to avoid eye contact with her; she also testified that she observed him "slouching" (tr I at 31). But Defendant did not cover his mouth while speaking to any of the officers. In fact, Defendant gestured with his left hand during their conversation. He also placed his left thumb on his chin periodically, and using the same hand, briefly placed his thumb and forefinger just below the corners of his mouth. Defendant spoke at a reasonable pace and volume; and he made eye contact while speaking with Officer Reyes Leon. He responded to questions without hesitation. When Defendant exited his vehicle, his movement was impeded by the cord attached to his pants. Despite that, he was steady on his feet and stood upright. Although Defendant looked downward when standing beside the vehicle, he looked up without hesitation when asked to do so. As officers shone flashlights directly at Defendant's face, he widened his eyes. And in that moment, as depicted in Defendant's Exhibit A, his eyes did not appear to be bloodshot. Notwithstanding, the patrol supervisor said, "all right, bring him in," and briefly laughed without articulating any indicia of intoxication. Interestingly, Officer Reyes Leon's testimony that the supervisors "smelled the alcohol as well" is unsupported by her BWC footage.

In this case, a civilian's allegations that Defendant had committed traffic violations and the odor of alcohol described by one officer as "a little bit," absent indicia such as a flushed face, slurred speech, or an unsteady balance, do not automatically demonstrate impairment (see People v Vandover, 20 NY3d 235 [2012]). To eradicate any speculation or uncertainty, or to establish probable cause that Defendant was intoxicated, the officers could have administered a portable breath test or conducted a sobriety test at the scene. Indeed, Officer Reyes Leon asked her partner at least twice whether they could conduct a sobriety test, but no one obliged; nor did any of the officers request that Defendant undergo such test. In fact, the partner stated, "nah, I can't. You have to take him [in], but it has to be a reason." And lastly, when asked about the issuance of a summons, Officer Reyes Leon's partner replied, "he didn't really do anything."

Based on the testimony and evidence presented at the hearing, the parties' oral arguments, and relevant legal authority, the Court finds that People failed to establish probable cause to arrest Defendant Sanchez for allegedly violating PL § 120.20 — Reckless endangerment; VTL §§ 1192[3] and [2] — Operating a motor vehicle while under the influence of alcohol or drugs; and VTL § 1212 — Reckless driving. Accordingly, Defendant's motion to suppress all evidence related to these charges, specifically the chemical breath test results, police observation and footage, tangible evidence, and noticed statements is GRANTED.

This constitutes the Decision and Order of this Court.