People v. Ellman
| Decision Date | 01 June 1987 |
| Citation | 517 N.Y.S.2d 664,135 Misc.2d 1010 |
| Parties | PEOPLE of the State of New York v. Kenneth ELLMAN, Defendant. |
| Court | New York City Court |
Jay B. Hashmall, Corp. Counsel, Yonkers, for the People.
Howard Garfinkel, Yonkers, for defendant.
DECISION & VERDICT AFTER TRIAL UNIFORM TRAFFIC TICKET
This is a prosecution under § 1160(d) of the Vehicle and Traffic Law (VTL) for failure to turn right as required by signs and pavement markings.
On January 9, 1987, Police Officer John Mullins of the Yonkers Police Department observed a black Jeep station wagon proceeding southbound on Rumsey Road near its intersection with Spruce Street. The Officer and his partner were stopped nearby for the purpose of observing traffic at that location.
Rumsey Road at that point is a two-way street with a center island. North of Spruce Street, it contains two southbound traffic lanes which are clearly marked. South of Spruce Street, it contains one southbound traffic lane and one parking lane. At and near the intersection with Spruce Street are a number of official signs and pavement markings indicating that the left lane of southbound traffic may turn left or proceed straight ahead, and that the right lane must turn right.
The Officer observed the Jeep station wagon stopped in the right-hand southbound lane behind another vehicle which was stopped for the red light at the intersection. A number of other cars were stopped in the left lane. When the light turned green, the vehicle in front of the Jeep turned right. The Jeep proceeded into the intersection and veered into the left lane in front of the first car in that lane, forcing its driver to brake abruptly to avoid collision with the Jeep.
Having observed the failure to turn right and near collision, Officer Mullins pursued and stopped the Jeep. Defendant Ellman, the driver, produced a valid New York driver's license and valid New York registration for the Jeep, which bore official license plate number 94478Y and was registered to "Westchester County SPCC Police." He was issued U.T.T. # TD 6680376 for "Fail To Turn As Indicated" under VTL § 1160(d).
After trial, Defendant moved to dismiss on the grounds that one sign was improperly posted, the wrong section of the VTL was cited, and that he was a police officer responding in a police vehicle to a police call in an emergency operation, and, therefore, was not obliged to obey turn indications.
The Motion is denied. While the matter could have been disposed of by the customary brief decision and verdict from the bench, the facts presented in support of Defendant's third defense are disturbing, and deserve to be addressed at length.
Officer Mullins testified credibly that he observed the signs and pavement markings at the time of the infraction and that all were legible and properly positioned. Defendant produced a picture indicating that one of the signs has been turned so it no longer faces southbound traffic. The Court concludes that this occurred sometime after the incident and that, in any event, the other official signs and pavement markings were ample notice to all that the "right lane must turn right."
Defendant argues that VTL § 1160(d) does not govern failure to turn as required. The Court agrees.
Section 1160(d) provides, in almost relevant part, as follows: "When ... signs ... are placed within or adjacent to intersections and thereby require and direct that a ... course ... be travelled by vehicles turning at an intersection, no driver of a vehicle shall turn a vehicle at an intersection other than as directed ..." This section does not proscribe Defendant's conduct, as he did not turn. He proceeded straight ahead, through the intersection, only veering into the left when forced to enter the one remaining southbound traffic lane after the intersection.
The summons also indicates, however, that the substance of the charge is "Fail To Turn As Indicated." A supporting deposition, timely served and filed prior to trial, clearly states the date, time and place and that "said Jeep was in the right lane." It continues that "there are several signs posted stating "Right Lane Must Turn Right" and that the officer "observed said Jeep not make the right turn and go south on Rumsey Road."
VTL § 1128(c) provides in relevant part as follows: "When official traffic control devices ... designate those lanes to be used by traffic moving in a particular direction ... drivers of vehicles shall obey the directions of every such sign, signal or marking."
Clearly, the summons and supporting deposition advised Defendant that he was charged with disobeying a sign which designated the right-hand lane as one to be used only by traffic turning right, in that he used the right lane and failed to turn right.
Defendant herein raises this point for the first time after trial, in a post-trial memorandum of law. Clearly, if the Defendant had not understood the charge or been hindered in his defense, the point would have been raised before or during the trial by counsel.
The Court concludes that failure to cite VTL § 1128(c) was harmless, and VTL § 1160(d) was surplusage.
Defendant's remaining defense is that he was a police officer in a police vehicle responding to a police call.
At the trial, Defendant produced the above-mentioned registration. In the space reserved for the registrant, the first line states, "Westchester County" and the second line states "SPCC Police." Defendant also produced an official-looking identification card, sealed in plastic, which contained his picture. Under the picture is typed "Chief Detective/CPO." To the right of the picture, at the top, is printed "State of New York." Below that line is printed "Westchester County SPCC." Below that is printed "Police Agency." Below that is printed "Child Protective Agency." The card does not bear the logo of the State of New York or Westchester County, and Defendant admitted it was not issued by either. Rather, he stated it was issued by the Westchester County Society for the Prevention of Cruelty to Children, a not-for-profit corporation under § 1403 of the NPCL (hereinafter, "the Society").
Officer Mullins testified that there were three or four children in the back of the station wagon. Defendant testified that he had picked them up on the street and was proceeding to answer another call, consisting of "a child abuse emergency" on McLean Avenue in Yonkers.
Section 1104 VTL provides in relevant part as follows:
Section 114-b VTL defines "emergency operation" as:
Section 101 VTL defines "Authorized emergency vehicle" as follows:
"Every ambulance, police vehicle, fire vehicle ..."
Section 132 VTL defines "police officer" as follows:
"All police officers as defined in subdivision 34 of Section 1.20 of the Criminal Procedure Law, and every duly designated peace officer as defined in Section 2.20 of such law, when such peace officer is acting pursuant to his special duties."
Section 2.10 of the Criminal Procedure Law specifically designates as a "peace officer ..."
Section 132-a VTL defines "police vehicles" as follows:
"Every vehicle owned by the state, a public authority, a county, town, city or village, and operated by the police department or law enforcement agency of such governmental unit ... and a vehicle owned and operated by the law enforcement unit of a public or private corporation authorized by law to maintain a unit for the enforcement of law on the property of such corporation shall be a police vehicle only for the purposes of Section 101 of this chapter."
Defense counsel argues that the Society's vehicle meets both definitions of a "police vehicle" under VTL § 132-a. It meets neither.
Relying on a concurring opinion in People ex rel. Board of Charities v. N.Y.S.P.C.C., 161 N.Y. 233, at 250, 55 N.E. 1063, Defendant argues concerning the Society, that "Police powers are given to it and it is, in effect, a prosecuting agent of the state ..." Further, since a private corporation cannot exercise the State's police power (Cuomo v. Long Island Lighting Co., 127 A.D.2d 626,...
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Koppell v. Long Island Soc. for Prevention of Cruelty to Children
...lights on its vehicles plainly violates provisions of the VTL which limit such items to emergency vehicles (see People v. Ellman, 135 Misc.2d 1010, 517 N.Y.S.2d 664 [City Ct.Yonkers]. Moreover, official plates may be used only by vehicles operated by public agencies of the State of New York......