People v. Apostle

• Decision Date: 27 April 1961
• Citation: 30 Misc.2d 55,214 N.Y.S.2d 101
• Parties: PEOPLE of The State of New York v. Richard John APOSTLE, Defendant-Appellant.
• Court: New York County Court

Page 101

214 N.Y.S.2d 101

30 Misc.2d 55

PEOPLE of The State of New York v. Richard John APOSTLE, Defendant-Appellant.

Rockland County Court.

April 27, 1961.

Granik, Garson, Silverman & Nowicki, Spring Valley (David W. Silverman, Spring Valley, of counsel), for defendant-appellant.

Morton B. Silberman, Dist. Atty., of Rockland County, Nyack (G. Frank Dougherty, New York City, of counsel), for the People.

HERBERT E. HENION, Judge.

The defendant appeals from a judgment of the Court of Special Sessions of the Town of Clarkstown convicting him of advertising without a permit in violation of Rule 13 of the Rules and Regulations of the Palisades Interstate Park Commission.

The Rule in question reads as follows:

'13. Advertising Prohibited.

'No person shall, without a permit from the Commission, post, paint, affix, distribute, hand out, deliver, place, cast or leave about, any bill, billboard, placard, ticket, handbill, circular or advertisement; display and flag, banner, transparency, target, sign, placard, or any other matter for advertising purposes; or operate any musical instrument or drum, or cause any noise to be made, for advertising purposes, or for the purpose of attracting attention to any exhibition, performance or show, or for any other purpose.'

Under Rule 1(a) of said Rules and Regulations, the term 'park' includes 'parkways, park roads, bridges * * * and also entrances and approaches thereto'; and the term 'parkway' includes the 'paved roadways, access drives * * * and other areas within the right-of-way of the parkway.'

Under Rule 2(b) of the said Rules and Regulations there is prescribed the territorial scope within which such Rules and Regulations shall be effective. This Rule reads as follows:

'Territorial Scope. All Palisades Interstate Park Commission Rules and Regulations shall be effective within, above and upon all lands, parks and parkways under the jurisdiction of the Commission in the Counties of Orange and Rockland and shall regulate the use thereof by all persons.'

While the defendant's affidavit on appeal raises several errors, in his brief he contends substantially that the People have failed to prove a prima facie case and that while the regulation in question is reasonable and within the Commission's power if applied to vehicles traversing the parkway, the Commission has exceeded its jurisdiction by extending the rule to a road which passes over the bridge above the paved parkway, which the defendant claims is owned or controlled by the County of Rockland without the jurisdiction of the Commission; and that the manner of its exercise was in contravention of the equal protection clauses of the federal and state constitutions.

It appears that at the time of the alleged violation of July 31, 1960, the defendant was sitting behind the wheel of a car which was standing on the said parkway bridge which conveys North Middletown Road over the parkway, at Exit 10. The car was facing south on the north end of the bridge. On the rear of the car there was a sign 'Escort Car To Mirror Lake Homes.' The patrolman (the complaining witness) while traveling southbound on the parkway saw the car in which he later found the defendant, parked on the said parkway bridge and fifteen or twenty minutes later when returning north on the parkway the witness again saw this car in the same location and proceeded thereto, where the summons was issued. The sign in question was not visible from the paved portion of the parkway below .

It appears that in the morning of that day at the same exit and within the boundaries of the parkway, the patrolman came across three signs with an arrow pointing in the direction of Mirror Lake Homes, and that he went over to Mirror Lake Homes where he spoke to the person in charge of advertising. It further appears that at approximately 12:30 p. m. on the same day the patrolman had similarly come upon the defendant whose vehicle was parked at the same exit, on Church Road, on the northerly side of the parkway, that on the back of the vehicle there was a sign, 'Escort Car To Mirror Lake Homes' and that the defendant was issued a written warning for advertising within the property lines of the parkway in violation of the Rules and Regulations and was informed that if there was any further violation he would be given a summons. It further appears that an advertisement of Mirror Lake Homes appeared in the New York Herald Tribune on July 31, 1960, the morning of the alleged offense. This advertisement gave directions from the George Washington Bridge to the site of Mirror Lake Homes, through use of the Palisades Interstate Parkway. In the advertisement there appeared, among others, the words 'Look for Escort Cars as Pkwy. Exit 10.'

People's Exhibit 2 shows the boundary lines of the parkway at Exit 10 and the entrance and exit drives to and from the parkway, as well as the parkway bridge carrying North Middletown Road over and above the pavement of the parkway--all of which lie within the parkway right-of-way. The bridge was built for the Palisades Interstate Parkway by the Department of Public Works of the State of New York and is owned and maintained by the said Palisades Interstate Park Commission. In fact, everything shown on People's Exhibit 2 (except the pavement of the parkway strips) was built by the Department of Public Works for the Park Commission.

There is testimony that the road known as North Middletown Road which was changed in grade or elevation was never turned over to the County of Rockland. In fact, North Middletown Road, which existed prior to the building of the parkway and bridge, was closed to traffic in December 1953 and while the parkway bridge was being constructed, and reopened to traffic in December 1954. However, North Middletown Road appears on the Road Map of Rockland County (defendant's Exhibit A) as a county road.

The claim of the defendant that the People have failed to establish its case beyond a reasonable doubt is not substantiated by the evidence and therefore the errors assigned in the affidavit on appeal and designated in paragraph '3' as '(A)', (C)', '(D)', '(E)', and '(F)' are without basis.

The court is also of the opinion that the information sufficiently charges the offense herein and the alleged error designated in paragraph '3' '(J)' of the affidavit on appeal is not well founded.

It is claimed by the defendant in his affidavit on appeal (paragraph '3' '(B)') that the People failed to establish that the regulation in question was duly and regularly adopted, enacted, published and posted, and failed to introduce into evidence the said regulation. Examination of the record reveals that the only objection raised with regard to the Rules and Regulations was that they were not introduced in evidence and that the law requires 'they be properly attested to by either the Secretary of the Commission or be attested in some other manner.' The return of the Justice states that he took judicial notice of such Rules and Regulations. The court does not find any indication in the record that an issue was raised by the defendant as to due adoption thereof. That the record indicates limitation of the objection to the failure of the People to introduce into evidence the rule which the defendant was convicted of violating is borne out by the argument urged in the defendant's brief at pages 8 and 15. This court feels that, at least in the absence of an issue, the trial court could properly take judicial notice thereof. Civil Practice Act, § 344-a, subd. A(4).

The defendant further contends that the regulation under which the defendant was convicted is invalid, the same being unreasonable, unfair and discriminatory and that the enforcement thereof is extended to an area without the jurisdiction of the Palisades Interstate Park Commission, namely, a county road. (See affidavit on appeal, paragraph '3' '(H)' and '(I)'.) However, the defendant at one point in his brief (page 8) states that the 'regulation, if applied to vehicles traversing the parkway, is reasonable and concededly within the Commission's rule-making powers.'

In considering reasonableness there must be borne in mind the purpose of the park and parkway. The latter is not a commercial highway or expressway but an avenue of travel through scenic and attractive surroundings for the enjoyment and recreation of its users.

Specific claim is not made that the legislature has now the power to confer upon the Palisades Interstate Park Commission the right to make rules for the use and government of the park within its jurisdiction and of the highways within the boundaries thereof. Rather it is claimed that the instant rule is not within the grant or power given to the Commission. The court is disposed to hold otherwise. Reference is made to part 9 of article 16 (sections 745 to 762, inclusive) of the Conservation Law, which specifically governs the Palisades Interstate Park Commission, and also section 678 of such law, under which any regional state park commission (including Palisades Interstate Park Commission) is authorized and empowered to make or adopt suitable rules, regulations or ordinances for the proper exercise of its powers and duties and for the government and use of the public reservations under its care and to enforce observance thereof.

The term 'park' as used in part 9 of article 16 of that law is defined in section 762 thereof as deemed 'to include all lands, parks and parkways in this state, entrances and approaches thereto, and all roads, pathways, boulevards, docks, piers and bridges in, leading to or connecting such lands, parks or parkways or parts thereof * * *.'

Matters of advertising have become the subject of legislation in the various states. In this state, in illustration of the extent thereof may be found in the statute government park commissions (Conservation Law § 675) and in the statute relating to the New York State Thruway Authority (...