People v. Burger

• Decision Date: 11 June 1984
• Citation: 479 N.Y.S.2d 936,125 Misc.2d 709
• Parties: The PEOPLE of the State of New York v. Joseph BURGER.
• Court: New York Supreme Court

Page 936

479 N.Y.S.2d 936

125 Misc.2d 709

The PEOPLE of the State of New York v. Joseph BURGER.

Supreme Court, Criminal Term Kings County, Part 40.

June 11, 1984.

Mahler & Harris, P.C., Forest Hills, for defendant Burger; Stephen Mahler, Forest Hills, of counsel.

Elizabeth Holtzman, Dist. Atty., Kings County, for the People; Catherine Wilder, Brooklyn, of counsel.

LEWIS L. DOUGLASS, Justice.

On May 12, 1983, defendant Burger moved to suppress physical evidence seized from his business premises on the grounds that Section 415-a(5) of the Vehicle and Traffic Law was unconstitutional. That motion was denied, after a hearing, in a decision by this court dated April 12, 1984.

On April 30, 1984, the Appellate Division decided People v. Pace, 101 A.D.2d 336, 475 N.Y.S.2d 443 (1984). Alleging that the People v. Pace (supra), decision requires a result contrary to that reached by this court in the suppression hearing, defendant requested a renewal and reargument of the previously denied suppression motion and asked for proper and equitable relief. In consideration of the relevant issues of law developed by the Appellate Division in People v. Pace, reargument was granted.

FACTS

Defendant Burger is in the auto junkyard business. His business premises are an open yard containing vehicles and parts of vehicles. His business consists of dismantling vehicles and selling the vehicle parts.

Police officers assigned to the Auto Crimes Division, which generally handles inspections of auto junkyards and whose officers have received special training, conducted an inspection of the defendant's yard. Upon this inspection the officers found that the defendant did not have a "police book," which all auto junkyards are required to keep. (See Vehicle and Traffic Law, Section 415-a(5) par. (a)). Continuing their inspection of the yard, the officers gave the police radio dispatcher the VIN number of a vehicle in the defendant's yard and received information that the vehicle was stolen. Subsequently, the officers arrested the defendant and seized the stolen property.

The issue on reargument is whether the officers of the Auto Crimes Division had the power to enter the defendant's yard and conduct an inspection in the manner and under the circumstances described above.

SECTION 415-a(5) OF THE VEHICLE AND TRAFFIC LAW

Section 415-a(5) of the Vehicle and Traffic Law states that, "upon request of an agent of the commission or of any police officer ... a vehicle dismantler shall produce such records and permit said agent or police officer to examine them and any vehicles or parts of vehicles which are subject to the record-keeping requirements of this statute ..."

In the original suppression hearing, this court found that Section 415-a(5) of the Vehicle and Traffic Law was constitutional. The statute was found to be limited in time, place and scope because the inspection is done during "regular business hours," on "all motor vehicles, trailers and major component parts thereof," and "only those vehicles or parts subject to the record-keeping requirement."

This court also found that defendant's auto junkyard business was a member of a "pervasively regulated" industry. As a member of a pervasively regulated industry, defendant's business may be subjected to warrantless inspections (Donovan v. Dewey, 452 U.S. 594, 595, 101 S.Ct. 2534, 2536, 69 L.Ed.2d 262; United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87; Colonnade Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60; People v. Rizzo, 40 N.Y.2d 425, 386 N.Y.S.2d 878, 353 N.E.2d 841). That is exactly what occurred in this case. Officers of the Auto Crimes Division entered defendant's auto junkyard to conduct a warrantless inspection.

On reargument, defendant alleges that footnote 1 ¹ of the majority opinion in People v. Pace requires the officers to seek a search warrant when the auto junkyard does not produce a police book. The court finds this argument unpersuasive. The footnote merely states that the court did not apply Section 415-a(5) in People v. Pace. The Appellate Division pointed to the lack of a police book as further evidence that, in that case, the police officers were not conducting an administrative inspection but gathering evidence for criminal prosecution.

Further support for rejection of defendant's allegation is found in the wording and intent of Section 415-a(5) of the Vehicle and Traffic Law. The statute expressly states that an agent or police officer may examine the records, any vehicles or parts of vehicles which are subject to the record-keeping requirements of the statute. The presence of a police book is not given as a prerequisite to a warrantless inspection of vehicles or parts of vehicles. Obviously, to require a warrant for an inspection of the items in the yard whenever there is no police book would hinder the power of the officers and frustrate the purpose of the statute, which is to discourage auto junkyards from dealing in stolen goods. This concern was well put in People v. Tinneny, where the court stated the following:

"It is unavailing for defendant to contend that only his records but not his inventory were subject to inspection.

The purpose of the record keeping is to insure that vehicles or the parts thereof are lawfully dealt with, hence deterring the acquisition and disposition of stolen items. Without the ability to substantiate statutory compliance by visual examination of the defendant's inventory, the intent of the statute, requiring the keeping of the records would be frustrated if not rendered entirely nugatory."

People v. Tinneny, 99 Misc.2d 962, 417 N.Y.S.2d 840.

Although it seems proper to find that Section 415-a(5) of the Vehicles and Traffic Law authorized the Auto Crimes Division officers' inspection of the defendant's yard, this court need not decide this case on Section 415-a(5) alone. The District Attorney has alleged that, both, Section 415-a(5) of the Vehicles and Traffic Law and Section 436 of the New York City Charter permit this inspection.

SECTION 436 OF THE NEW YORK CITY CHARTER

Section 436 of the New York City Charter, which is entitled: Powers over certain trades, provides the following:

"The (police) commissioner shall possess powers of general supervision and inspection over all licensed or unlicensed pawnbrokers, vendors, junkshop keepers, junk boatmen, cartmen, dealers in second-hand merchandise and auctioneers within the city; and in connection with the performance of any police duties he shall have power to examine such persons, their clerks and employees and their books, business premises, and any articles or merchandise in their possession. A refusal or neglect to comply in any respect with the provisions of this section on the part of any pawnbroker, vendor, junkshop keeper, junk boatman, cartman, dealer in second-hand merchandise or auctioneer, or any clerk or employee of any thereof shall be triable by a judge of the criminal court and punishable by not more than thirty days' imprisonment, or by a fine of not more than fifty dollars, or both."

In People v. Pace (supra), the Appellate Division examined the authority of the police under Section 436 of the New York City Charter. In that case, the officers were checking the registration of an automobile when a truck carrying a portion of a car body passed by. When the officers noticed that the VIN plate was removed from the car body, they placed the truck's driver under arrest. At that point, a truck carrying two front ends of late model cars passed by. The officers discovered that the parts came from Economy Auto Salvage, a company owned by the two defendants in that case. When the officers arrived at Economy Auto Salvage, they were told that the police book had been stolen. The officers then "undertook to survey the yard, not for the purposes of an administrative inspection but expressly to gather evidence of a crime." (Id.) The court concluded that "because we find that the search undertaken...