People v. Erdman
Citation | 145 Misc.2d 358,546 N.Y.S.2d 775 |
Parties | PEOPLE of the State of New York v. Ira H. ERDMAN, Defendant. |
Decision Date | 19 September 1989 |
Court | New York Justice Court |
Michael T. Hopkins, Village Atty. by James Darcey, Village Prosecutor, Valley Stream, for People.
Ira H. Erdman, Valley Stream, pro se.
Defendant, Ira H. Erdman, is charged with a violation of section 1110(a) of the New York Vehicle and Traffic Law, to wit; failure to obey a traffic control device. A violation of this section is a traffic infraction and a moving violation.
A trial of this action was held before the Court on June 14, 1989. Two witnesses, the police officer and the defendant, testified. The facts of this case are essentially undisputed. On January 18, 1989 at approximately 9:00 A.M. the defendant parked his vehicle on Rockaway Avenue near Wheeler Avenue Grammar School in Valley Stream, Nassau County, New York. A sign was posted at that location, which specifically said "no stopping between 8:00 A.M. and 4:00 P.M." He exited his automobile with his daughter and then proceeded into the school to drop her off for the day's classes. Upon returning to his car, the police officer asked for his driver's license and issued the defendant an appearance ticket for failure to obey a traffic control device, a violation of V.T.L. 1110(a).
The defendant moves to dismiss the charge on two primary grounds; (1) that the sign in question is not a traffic control device and (2) that the nature of the offense does not constitute a moving violation. Therefore, the defendant contends, he is improperly charged and the action must be dismissed.
The definition of a traffic control device may be found in Section 153 of the Vehicle and Traffic Law, which states that traffic control devices are "all signs, signals, markings and devices not inconsistent with this chapter, placed or erected by authority of a public body or official having jurisdiction for the purpose of regulating, warning or guiding traffic." One of the primary purposes of a traffic control device is the safety of a highway to accomodate an adequate number of vehicles with minimum delay, resulting in an orderly traffic flow, 17 N.Y.C.R.R. 200.2(a). Signs regarding "no parking" or "prohibition signs" are expressly included in that category. (see 17 N.Y.C.R.R. 221.5).
Therefore, based upon the aforementioned, it is clear a no-parking sign is a traffic control device. However, it is unclear if the circumstances in the case at bar constitutes a moving violation.
Surprisingly, this Court has determined after an exhaustive search of the law, that there is no definition of the term "moving violation." In the absence of such a definition, this Court shall examine analogous case law and statutes to determine if, indeed, Section 1110(a) of the Vehicle and Traffic Law was violated.
Section 129 of the Vehicle and Traffic Law defines parking as "the standing of a vehicle, whether occupied or not, otherwise than temporarily". It has been held that "parking" may be a short duration and has in it the element of an automobile in use being temporarily placed until it is about to be again put into service and use. Village of Great Neck v. Green, 8 Misc.2d 356, 166 N.Y.S.2d 219 (Nassau Co.1957) aff'd, 5 A.D.2d 779, 170 N.Y.S.2d 297 (Second Dept.1958). On the other hand, the "operation" of the vehicle occurs when a person begins to "manipulate the machinery of the motor for the purpose of putting the automobile in motion." People v. David W., 83 A.D.2d 690, 442 N.Y.S.2d 278 (Third Dept.1981).
In the case at bar, the defendant turned off the ignition of his vehicle. He then left his vehicle for a few moments to walk his daughter into the nearby school. Such activity was not a mere temporary unloading but was the complete termination of the operation of the automobile. Therefore, it would appear that the actions of the defendant were tantamount to parking and not the active operation of the automobile.
Perhaps the defendant's strongest argument favoring dismissal rests in his concern that "points" may be assessed against his drivers license if he is convicted of an infraction of this nature. Section 510(3)(d) of the VTL states that a driver's license may be suspended for habitual violations of the Vehicle and Traffic Law. VTL Section 523-a; provides that the Commissioner of Motor Vehicles shall establish criteria, based on driving record for requiring attendance at a drivers improvement clinic. (emphasis added) 15 N.Y.C.R.R. 131.1. The criteria established is the use of point values being assigned to different violations of the Vehicle and...
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...to him" and one cannot disobey a traffic control device when his vehicle is not in operation. People v. Erdman, 145, Misc. 2d 358, ___, 546 N.Y.S.2d 775, 775, 776-77 (N.Y. J. Ct. 1989) (stating that "[a] violation of [§ 1110(a)] is a traffic infraction and a moving violation" and holding th......
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People v. Oliver
...an interpretation would violate the spirit and intent of this criminal statute. (See People v Zavaro, 126 Misc 2d 237 [1984]; People v Erdman, 145 Misc 2d 358 [1989].) Accordingly, the defendant's motion to dismiss the information charging him with falsely reporting an incident in the third......