People v. Devlin

• Decision Date: 01 October 1970
• Citation: 314 N.Y.S.2d 670,64 Misc.2d 327
• Parties: PEOPLE of the State of New York, Plaintiff, v. Thomas DEVLIN and Kenneth Viscusi, Defendants.
• Court: New York District Court

Page 670

314 N.Y.S.2d 670

64 Misc.2d 327

PEOPLE of the State of New York, Plaintiff, v. Thomas DEVLIN and Kenneth Viscusi, Defendants.

District Court, Suffolk County, First District.

Oct. 1, 1970.

George J. Aspland, Dist. Atty., by Ronald E. Lipetz, Riverhead, of counsel, for the People.

Meyer & Wexler, Smithtown, Richard T. Haefeli, Smithtown, of counsel, for defendants.

MEMORANDUM

WILLIAM M. PERRY, Judge.

Defendants have jointly moved to dismiss the complaints (Uniform Traffic Tickets) upon the specific ground that the vehicle in question was a 'mini- bike' and therefore not regulated by the Vehicle and Traffic Law.

The U T T's charged the defendant Devlin with being an unlicensed operator of a motor scooter; operating an unregistered motor scooter; operating a motor scooter without insurance, and operating a motor scooter in an intoxicated condition. The defendant Viscusi is charged with three counts of permitting the unlicensed, uninsured, and unregistered operating of the same motor scooter.

In support of their motion, the defendants have submitted various documents which establish that the vehicle in question is a two wheeled vehicle with a seat and a motor, or to use current terminology a 'mini-bike'. In support of their contention that the 'vehicle' described is not regulated by the Vehicle and Traffic Law, the defendants rely upon La lomia v. Bankers and Shippers Insurance Company, (58 Misc.2d 530, 296 N.Y.S.2d 464) 'People v. Miller' (Suffolk County District Court, May 8th, 1970, not otherwise reported) and, the absence of the term 'mini-bike' in the Vehicle and Traffic Law.

The People contend that the 'vehicle' is a motorcycle as defined in Section 123 of the Vehicle and Traffic Law and accordingly the various regulating provisions of the Vehicle and Traffic Law apply. Defining 'motorcycle' as 'every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground * * *' it would appear that Section 123 covers the vehicle in question. However, the subject of these 'mini-vehicles' or 'mini-bikes' is a vexing one, especially in view of their increasing popularity and the inherent danger and temptation they present to the young.

The Vehicle and Traffic Law prior to September 1st, 1970, made no mention of these mini-vehicles. In 1970, the legislature amended the Vehicle and Traffic Law to specifically provide that the failure to register a mini bike was a traffic infraction (L.1970 C. 1000). We may take note of the Governor's message on this bill that the legislature inadvertently amended Section 401 of the Vehicle and Traffic Law (registration of motor vehicles) instead of Section 410 of the Vehicle and Traffic Law (registration of motorcycles). Rather than clarifying matters, it would seem that the legislature had further muddied the waters regarding the classification of these 'vehicles' as 'motor vehicles' or 'motor-cycles.'

In La lomia case, Supra, relied upon by defendants, a bicycle had been surgically converted into a two wheel powered vehicle. The trial Court described this 'vehicle' as a 'contraption' which did not merit the dignity of and could not pass the required periodic inspections and was therefore, not covered by an automotive liability insurance policy.

This decision was subsequently modified by the Appellate Division 2nd Department, 35 A.D.2d 114, 312 N.Y.S.2d 1018. The Court referring to the 'contraption', stated, that it was a motor vehicle within the meaning of the Vehicle and Traffic Law and in arriving at that conclusion said (p. 116, 312 N.Y.S.2d p. 1020), 'To hold that the motor-driven cycle was not a motor vehicle would allow the indiscriminate use of such dangerous contraptions by...