People v. Giordano

• Decision Date: 17 November 1981
• Citation: 445 N.Y.S.2d 879,112 Misc.2d 77
• Parties: PEOPLE of the State of New York, v. Mary Jane GIORDANO, Defendant.
• Court: New York Villiage Court

Page 879

445 N.Y.S.2d 879

112 Misc.2d 77

PEOPLE of the State of New York, v. Mary Jane GIORDANO, Defendant.

Village Justice Court of Lynbrook.

Nov. 17, 1981.

Peter L. Ledwith, Garden City, for plaintiff.

Finley Lewis, New York City, for defendant.

DECISION AFTER TRIAL

LESTER FOREST, Acting Village Justice.

Defendant is charged with a violation of Section 415(8) of the Vehicle and Traffic Law which is concerned with the use of "number plates" by transporters or dealers.

At the trial the defendant, represented by counsel, stipulated orally to the Court that all the facts were as set forth in the "information". The Simplified Traffic Information states, inter alia, "MISUSE OF DEALERS REG PLATES ON MV (FOR PERSONAL USE)". It was agreed by defendant's counsel that the only issue before the Court was whether defendant's personal use of the vehicle after business hours was permissible.

The defendant contends that, as a matter of law, a vehicle designated by a dealer for sale or demonstration purposes with dealer number plates thereon may be operated after business hours for the personal use of the dealer who owns or controls such vehicle and that no case law states to the contrary. The defendant also submits that it is a common practice among dealers to operate a vehicle, held for sale or demonstration, after business hours for the personal use of family and/or employees.

The People cite only one court decision in support of a conviction herein. The Motor Vehicle Bureau has advised the Court that there are some 60,000 dealer number plates annually issued throughout the State of New York.

The issue before the Court appears to be of some widespread concern and warrants a full, in-depth analysis.

* * *

With the advent of the automobile, Highway Law of 1890 was amended in 1901 to provide in Sec. 166 for automobile registration; the last sentence reads: "This section shall not apply to a person manufacturing or dealing in automobiles or motor vehicles, except those for his own private use." (L.1901, c. 531). In 1903 the provision was amended with the addition of "and except those hired out."

In 1904 the Appellate Division, First Department, reviewed the statute in People v. MacWilliams, 91 App.Div. 176, 86 N.Y.S. 357 and stated:

"The statute does not require an interpretation that the Legislature intended to permit manufacturers and dealers to operate automobiles and motor vehicles, which they have in stock and for sale, upon the public highways. It was evidently deemed unnecessary to require the registration of such vehicles as were held in stock for sale or for repair or on storage in automobile barns and stables. The Legislature assumed that there was little danger to be apprehended that such automobiles and motor vehicles would be used upon the public highways in violation of law, and it, therefore, dispensed with the registration thereof. It indulged, however, in the rational assumption that private owners became such with a view to using the vehicles, and it required such an owner to register his vehicle and obtain a certificate from the Secretary of State and attach a tag for identification, realizing that this would be the most accurate method of identifying the machines when in use upon the public ways. Then it prohibited the use of the vehicle in the public streets without such tag. That prohibition is general, and applies to all automobiles and motor vehicles regardless of the purpose for which they are owned or held. If the manufacturer or dealer wishes to take a vehicle which he has in stock for sale or for repairs or on storage out upon the public streets and operate it by its own power, he may secure that right by registering it as provided in section 166 and attaching to it a tag with a number thereon corresponding to the certificate... It will be observed that even the manufacturer or dealer is required to register any such vehicle that he holds for his own private use or for hire. If he operates an automobile or motor vehicle upon the streets for the purpose of exhibiting for sale this would, strictly speaking, be operating it for his private use and he would not be exempted from a compliance with the provisions of section 166 with respect to the registration of the vehicle because the vehicle would not be within the exception contained therein." 91 App.Div. at 180-181, 86 N.Y.S. 357.

The Highway Law was amended in 1910 separating the motor vehicle provisions from the rest of the statute, and Section 284 provided for dealers' registration of their vehicles and concluded with: "Nothing in this subdivision shall be construed to apply to a motor vehicle operated by a manufacturer or dealer for private use or for hire."

In 1915 the Attorney-General rendered an opinion (Op.Atty-Gen. (1915) 207) in response to the question: "Can a dealer operate his car or cars for private use under his dealer's license?" The Attorney-General responded at p. 209:

"The law, previous to its amendment in 1910 did not require dealers to have tags or plates for automobiles merely kept in stock; still, the former statute was construed as requiring the marking of dealers' cars when actually operated. (People v. MacWilliams First Dept.1904, 91 App.Div. 176 Evidently to avoid the difficulties of that case, the amendment provided for dealers' registration at fifteen dollars, with provision for duplicate plates at a small price. (Sec. 284.) It properly follows, therefore, the phrase 'nothing in this subdivision shall be construed to apply to a motor vehicle operated for private use or for hire' means that when the preferred classes of manufacturers and dealers do operate for private use or for hire, they must comply with the additional requirements for ordinary owners' registration and for which regular fees are charged. This was the construction evidently adopted by the Appellate Division in construing a provision similar to that above quoted contained in the former law. (People v. McWilliams, supra ; see also 1910 Attorney General's Report, 427, construing the provision as a privilege.)

"The use of dealers' plates in the operation by a dealer or his agents of his automobiles for private use or for hire is, therefore, prohibited."

In 1911, the Court in People v. Hanna, 136 N.Y.S. 162 had construed the same provision in the same manner as the Attorney-General:

"Each and every car operated by a manufacturer...