People v. Bailey
| Decision Date | 23 July 1969 |
| Citation | 60 Misc.2d 283,302 N.Y.S.2d 874 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Clifford C. BAILEY, Defendant. |
| Court | New York County Court |
Thomas M. Persico, Dist. Atty., Gloversville, for plaintiff.
Ernest Abdella, Gloversville, for defendant.
This is an appeal from a judgment of conviction in the Justice's Court of the Town of Northampton (Hon. Elwood Ginter, Justice of the Peace), wherein the defendant was found guilty, after a trial, of a violation of Section 1120(a) of the Vehicle and Traffic Law of the State of New York, failure to keep right. The defendant was given a sentence of conditional discharge, and the Court imposed as conditions that the defendant refrain from driving for three months and surrender his license to the Justice of the Peace to be held by the latter for 90 days. The Court warned defendant that if he were apprehended driving a vehicle during the three month period that this would constitute a violation of the conditional discharge and the Court could resentence the defendant.
The trial record sets forth the testimony of two State Policemen who testified, in substance, that on June 21, 1968 at about 10:30 P.M. they received a call reporting an accident on Route 113 in the Town of Northampton, drove to the scene and found that a supporting pole for a power pole, on the south or southeasterly side of the road, away from the paved portion of the road, had been struck and split in half, and that wire from a fence had been pulled away from the wooden posts to which it had been affixed. There were no vehicles at the scene. County Road 113 contains two lanes, running generally in a northeasterly and southwesterly direction. Vehicle tracks leading from the road, running along a fence line on the southerly or southeasterly side of the road, across where the pole had stood, along a ditch and back on the roadway again, were observed by the trooper. The Troopers attempted to locate a damaged vehicle in the area and came upon a pickup truck in back of defendant's home with a part of a power pole lodged underneath it and some wire similar to the wire at the scene of the accident attached to it. The Troopers examined the damage to the truck and subsequently learned that the truck was registered in the name of George Bailey, defendant's father. The Troopers, at about 12:30 A.M., knocked at defendant's door, but getting no response proceeded to defendant's brother's home. Defendant's brother returned with the Troopers to defendant's home, in which they all entered. The broker awakened the defendant who emerged from his bed room and apparently in response to a question or questions by one of the Troopers told the Troopers that he had been traveling southwesterly on County Road 113 that evening, operating a pickup truck and that he could recall running off that road at about 10:30 P.M., but that he didn't remember striking a pole.
The defendant submitted an affidavit citing several alleged errors in the trial and in the proof, or lack thereof, in support of his appeal. A return was duly filed by the Justice of the Peace, and oral argument was presented by the District Attorney and by the attorney for the defendant before this Court.
Defendant contends that the People failed to sustain the burden of proof required by its failure to present proof that the defendant's failure to keep right did not result from an overtaking or passing another vehicle proceeding in the same direction, or from an overtaking or passing of pedestrians, animals or obstructions on the right half of the highway, or from an obstruction of the right half of the highway due to construction or repair.
Defendant further contends (a) that it was error for the Court to admit the admissions of defendant which were made by him after the investigation had reached the accusatory stage, (b) that the imposition by the Court of a conditional discharge is illegal and that Section 65.10 of the Penal Law is unconstitutional as violate of the Fourteenth Amendment, due process and equal protection clauses of the United States Constitution and that this Section is void for vagueness, and (c) that there is no statutory authorization authorizing a Justice of the Peace to hold an individual's driver's license upon a conviction for failure to keep right.
Defendant's contention that it was error for the Justice of the Peace to suspend defendant's driver's license for a period of 90 days is correct. Section 510 of the Vehicle and Traffic Law provides that any Justice of the Peace holding a Court of Special Sessions shall have the power to revoke or suspend the license to drive a motor vehicle of any person where such revocation or suspension is mandatory. Revocation or suspension of a license to drive a motor vehicle is not mandatory upon a conviction of a violation of Section 1120 of the Vehicle and Traffic Law, failure to keep right. Therefore, the Justice of the Peace in this instance is without jurisdiction to suspend the operator's license of the defendant herein and to that extent the sentence imposed against the defendant herein is illegal. (People v. Crawford, 34 Misc.2d 118, 231 N.Y.S.2d 51).
Defendant's contention that the imposition by the Justice of the Peace of a sentence of conditional discharge is illegal is without merit. Section 60.20 of the Penal Law specifically authorizes the Court, when a person is convicted of a traffic infraction, to impose a sentence of conditional discharge. The sole change made by the Penal Law in sentencing upon conviction for traffic infractions is substitution of conditional and unconditional discharge for the suspended sentence. Imprisonment and fine will be governed by the provision defining the infraction, as found in the Vehicle and Traffic Law. No fine or imprisonment having been imposed by the Justice of the Peace in this instance, he is authorized to impose a sentence of conditional discharge.
Defendant argues that in the event this Court holds that the Justice of the Peace is authorized by statute to impose a sentence of conditional discharge, as this Court does hold, that Section 65.10 of the Penal Law violates the Fourteenth Amendment, Due Process and Equal Protection Clauses of the United States Constitution, that it is void for vagueness, that it violates Article 3, Section 1 of the New York State Constitution, that the wording of the statute allows the sentencing Judge to impose conditions upon the defendant on the basis of the Justice's personal feelings toward the defendant without regard to the merits of the case, and that it allows the sentencing Judge to possess legislative powers which is a nonconstitutional delegation of legislative power, and that the defendant is being unjustly deprived of his freedom for a period of one year, which is the period prescribed for the conditional discharge.
This Court finds the arguments of the defendants as to Section 65.10 of the Penal Law to be without merit. A sentence of conditional discharge permits a defendant to be released after conviction without imprisonment, fine or probation supervision, and by no stretch of the imagination can this be interpreted as restricting the liberty of the defendant in any way whatsoever. The conditions of conditional discharge which may be imposed by the Court are stated in Section 65.10 of the Penal Law to be those conditions which the Court in its discretion deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so. In imposing a sentence of conditional discharge, the criteria in Subdivision 1 of Section 65.05 of the Penal Law sets forth that the Court shall have regard to the nature and circumstances of the offense and to the history, character and condition of the defendant. A guide to the type of conditions that can be imposed upon persons under sentences of conditional discharge is found in Subdivision 2 of Section 65.10 of the Penal Law. The obvious purpose of these sections is to give the...
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People ex rel. Tara P. v. DiStefano
...statute, which authorizes limitation on association with certain individuals, has been held to be constitutional (People v. Bailey, 60 Misc.2d 283, 302 N.Y.S.2d 874; People v. Johnson, 118 Misc.2d 983, 462 N.Y.S.2d 549). Courts have broad discretionary powers in setting conditions of probat......
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...Law § 1120(a) is a statute containing exceptions ( see People v. Brol, 89 A.D.2d 813, 453 N.Y.S.2d 540 [1982], citing People v. Bailey, 60 Misc.2d 283, 302 N.Y.S.2d 874 [County Ct., Fulton County 1969] ), recent cases have emphasized that legislative intent is the primary factor in determin......
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People v. Burn
...a person is not accused of a crime and all traditional constitutional safeguards were not meant to apply, see also People v. Bailey, 60 Misc.2d 283, 302 N.Y.S.2d 874 (County Ct., Fulton Co., 1969), People v. Phinney, 22 N.Y.2d 288, 292 N.Y.S.2d 632, 239 N.E.2d 515 (1968). In Phinney the iss......
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People v. Lobianco
...v Kirkham, 273 AD2d 509 [2000]; People v D'Angelo, 284 AD2d 146 [2001]; People v Feiler, 191 Misc 2d 390 [2002], citing People v Bailey, 60 Misc 2d 283 [1969]; People v Romano, 188 Misc 2d 368 [2 Misc.3d 427] An exception has been defined as language which absolutely excludes certain matter......