People v. Firth

• Decision Date: 26 February 1957
• Citation: 5 Misc.2d 439,159 N.Y.S.2d 794
• Parties: The PEOPLE of the State of New York v. Philip R. FIRTH, Defendant-Appellant.
• Court: New York County Court

Page 794

159 N.Y.S.2d 794

5 Misc.2d 439

The PEOPLE of the State of New York v. Philip R. FIRTH, Defendant-Appellant.

Monroe County Court.

Feb. 26, 1957.

William L. Clay, Rochester, for appellant.

Harry L. Rosenthal, Dist. Atty. of Monroe County, Rochester (John J. Conway, Jr., Rochester, of counsel), for the People.

OGDEN, Judge.

On June 9, 1956, a collision occurred on Lake Road, in the Town of Webster, between an automobile operated by defendant and a bicycle which was being ridden by a twelve-year-old girl. As a result of the collision the youngster was seriously injured and her bicycle damaged or destroyed. An information was filed accusing the defendant of a violation of Section 56, Subd. 1, of the Vehicle and Traffic Law. The defendant was arrested and, after a trial at which both the prosecution and the defendant were zealously represented by able counsel, defendant was found guilty.

An examination of the record on appeal discloses no substantial or prejudicial error in the admission or exclusion of evidence; ample evidence was presented to support a finding that defendant's speed was unreasonable and imprudent under the conditions present. Therefore, the only question considered on this appeal is whether defendant was guilty of a traffic infration--whether his acts have been declared criminal; particularly whether Section 56, Subd. 1, of the Vehicle and Traffic Law specifies a course of conduct a departure from which can be made the basis for criminal prosecution.

The information filed herein is entitled 'General Traffic Information Dangerous Speed Sec. 5-56-1 V & T Law,' and alleges that the defendant on the date and at the place specified did 'willfully, unlawfully and knowingly operate a (motor vehicle) upon a public highway in a manner not careful and prudent and at a rate of speed endangering the property of another and the lives and limbs of other persons, and at a rate of speed which would not permit him to bring the vehicle to a stop without injury to another'; thereafter certain facts are set forth as to the manner in which the accident occurred. It should be noted that alleged violation contains three specifications:--Driving (1) in a manner not careful and prudent; (2) at a rate of speed endangering the property of another and the lives and limbs of other persons; and (3) at a rate of speed which would not permit defendant to bring the vehicle to a stop without injury to another. Section 56 of the Vehicle and Traffic Law is entitled 'Speed limited' and Subdivision 1 provides as follows:

'No person shall operate a motor vehicle or a motor cycle upon a public highway at such a speed as to endanger the life, limb or property of any person, nor at a rate of speed greater than will permit such person to bring the vehicle to a stop without injury to another or his property.'

The first specification of liability is nowhere contained in the statute claimed to have been violated. Since the Legislature has not, in Section 56, Subd. 1, prohibited such operation of a motor vehicle, it seems to be unnecessary to more than point out that defendant, even though guilty of such operation, could not be convicted therefor of a violation of the statute in question.

The second and third specifications of liability follow the wording of Section 56, Subd. 1. I have heretofore discussed this statute as the basis for a criminal prosecution. People v. Gaebel, 2 Misc.2d 458, 153 N.Y.S.2d 102. The decision in the instant case may, in some respects, be repetitive of my opinion in the Gaebel case, supra. Because of the apparent prevalence of the use of Section 56, Subd. 1, as the basis for arrests; because this statute has been variously construed and interpreted by the County Courts of the State, e. g. People v. Gaebel, supra; People v. Horowitz, Co.Ct., 158 N.Y.S.2d 166; People v. Sprague, 204 Misc. 99, 120 N.Y.S.2d 725; People v. Burkhalder, 203 Misc. 532, 117 N.Y.S.2d 609; and People v. Furber, Co.Ct., 133 N.Y.S.2d 101; and because in the instant case it may be determined desirable to have the questions involved passed upon by the Court of Appeals, I deem it proper to again set forth the reasons which appear to dictate the decision about to be made.

In March, 1946 the Governor's conference on Highway and Traffic Safety recommended (p. 22 of the Conference Report) 'the adoption of an overall speed limit of 50 miles per hour, such speed limit to be absolute, not prima facie. It further recommends that the law relating to speed limits include a clause declaring that a speed greater than that which is reasonable and prudent under the conditions is a violation.' (Italics mine.) Based upon this recommendation Chapter 861 of the Laws of 1946 was enacted, amending Section 56, Subd. 1, of the Vehicle and Traffic Law. the difference in wording between the legislation recommended and the legislation enacted is readily apparent.

In People v. Grogan, 260 N.Y. 138, 183 N.E. 273, 86 A.L.R. 1266, the Court considered the constitutionality of Section 58 of the Vehicle and Traffic Law, prohibiting reckless driving, as it was then worded. I believe that what the Court said in that case may well be applied to the case at bar. There the Court said, 200 N.Y. at page 145, 183 N.E. at page 276:

'Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited. They must afford some comprehensible guide, rule, or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its...