DESPITE THE DRIVER’S FAILURE TO USE A TURN SIGNAL AS THE JUSTIFICATION FOR THE TRAFFIC STOP, DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THE STOP WAS ACTUALLY BASED UPON RACIAL PROFILING; IN THE FIRST DEPARTMENT THE “TURN SIGNAL” GROUND FOR THE STOP WOULD BE ENOUGH, EVEN IF THE STOP WAS ACTUALLY MOTIVATED BY DISCRIMINATION; NOT SO IN THE THIRD DEPARTMENT (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Lynch, disagreeing with the First Department, determined defendant was entitled to a hearing on his motion to vacate his conviction on the ground the traffic stop was motivated by racial profiling. The traffic stop was justified by the driver’s failure to use a turn signal. In the First Department, that is good enough, even if racial profiling was the real reason for the stop. Not so in the Third Department:

… [Defendant] asserted a violation of his constitutional rights … based on the allegedly discriminatory police stop. Defendant, who is black, supported this claim with sworn affidavits from himself and the vehicle’s driver. The driver — a white woman — averred in her affidavit that, during the police encounter, the investigator who initiated the stop chided her, saying “you stupid little white b****, you think this black guy cares about you, but he’s just using you to run drugs.” .* * *

… [W]e are mindful that both the majority and dissent in Robinson rejected as unworkable the “primary motivation” subjective test for a traffic stop (see People v Robinson, 97 NY2d at 353; id. at 371 …). We abide by that conclusion. Whether a traffic stop was premised on racial profiling must be assessed objectively with reference to the facts and circumstances of the encounter. Such considerations may include, for example, whether the arresting officers were involved in a plausible investigation prior to executing the vehicle stop. Also important — and certainly most relevant here — is consideration of the officers’ actions and comments during the encounter. …

Defendant [submitted] the sworn affidavit of the driver of the vehicle, who … recounted a highly concerning racist statement ostensibly made by the investigator conducting the stop. … [T]he People neither controverted the driver’s statement nor included an affidavit from the investigator doing so … . Having demonstrated his right to a hearing (see CPL 440.30 [5]), defendant bears the burden of proving his claims by a preponderance of the evidence … . In resolving the motion, the court should undertake an objective analysis of the facts and circumstances of the entire police encounter. People v Jones, 2022 NY Slip Op 05892, Third Dept 10-20-22

Practice Point: In the Third Department, even if there exists a valid reason for a vehicle stop, here the failure to use a turn signal, the stop may still be deemed invalid if it was motivated by racial profiling. In the First Department, the turn-signal violation would be enough, even if the actual motivation was discriminatory.