People v. Hakimi-Fard

• Citation: 519 N.Y.S.2d 766,137 Misc.2d 116
• Decision Date: 11 August 1987
• Docket Number: D,HAKIMI-FAR
• Parties: The PEOPLE of the State of New York, v. Farshioefendant.
• Court: New York City Court

Page 766

519 N.Y.S.2d 766

137 Misc.2d 116

The PEOPLE of the State of New York, v. Farshio HAKIMI-FARD, Defendant.

City Court of Yonkers, Westchester County.

Aug. 11, 1987.

James Rodriguez, pro se.

Barry Gedan, New York City, for defendant.

BRUCE E. TOLBERT, Judge.

This is a prosecution under Vehicle and Traffic Law (VTL), Sections 306(b), 319(1), 401(1)(a), 402(4) and 509(3).

On July 4, 1986 at 4:00 a.m., Police Officer Rodriguez of the Westchester County Police Department observed a 1977 Plymouth bearing New York Registration 928-ZNS being pushed from behind through the northbound toll lane of the Saw Mill River Parkway without its lights on. Police Officer Rodriguez activated his lights and siren and pulled both cars over. The Defendant, Farshio Hakimi-Fard, alighted from the driver's seat of the vehicle which was being pushed. Upon the Officer's request, the Defendant was unable to produce a license, certificate of registration or proof of financial security. Further investigation revealed that the vehicle displayed improper plates, was uninspected, and that Defendant had been issued a valid license which restricted his driving privileges to work related activities. Police Officer Rodriguez issued five uniform traffic tickets to the Defendant for the above-listed offenses.

At trial, Police Officer Rodriguez testified that he observed the Defendant behind the wheel of the suspect vehicle as it was being pushed along the highway, that he did not notice whether the keys were in the ignition, that he was unsure if there was a proper inspection sticker on the vehicle and that the Defendant admitted at the scene that his license was restricted to driving to and from work and he was not on his way to or from work at the time he was pulled over. The Officer also offered into evidence, without objection, a certified driving abstract and affidavit of regularity from the Department of Motor Vehicles in Albany.

The Defendant testified that he was a taxi driver, that his license was restricted to this activity, that he did not own the vehicle in question and that he did not know the car was unregistered, uninsured or had improper plates on it.

After the close of the People's case and again at the close of the trial, defense counsel moved to dismiss the charges upon the grounds that Defendant did not "operate" the vehicle or alternatively that the Defendant's lack of ownership of the vehicle and lack of knowledge regarding the proper registration, insurance and inspection of the vehicle preclude a finding of guilt.

In support of the proposition that a disabled vehicle in tow is not being "operated" by its occupant for purposes of the VTL, defense counsel cites Wolcott v. Renault Selling Branch, Inc., 175 A.D. 858, 162 N.Y.S. 496. We find that case unpersuasive. A person "operates" a motor vehicle when he begins to use the mechanisms of the automobile for the purpose of putting the automobile in motion. A driver who steers a vehicle being pushed from behind is using a mechanism of the automobile for the purpose of putting it in motion and is, therefore, "operating" the vehicle. (See People v. Chin, 96 Misc.2d 627, 409 N.Y.S.2d 500; People v. Marriott, 37 A.D.2d 868, 325 N.Y.S.2d 177; Matter of Prudhomme v. Hults, 27 A.D.2d 234, 278 N.Y.S.2d 67.)

VTL, § 375(29)(d) states in relevant part that, "A motor vehicle being towed by a rope or other non-rigid connection must have a licensed driver in such motor vehicle who shall steer it when it is being towed."

This vehicle was not being towed by any rigid or non-rigid device which could control its speed or direction. Rather, this car was completely unattached to the vehicle pushing it except for an occasional "bump" to keep it going. Clearly, the Defendant was in actual physical control of the subject vehicle. (See VTL § 113.)

If a licensed driver is required to steer a disabled vehicle in tow, a fortiori, a licensed driver is required to operate a completely free moving disabled vehicle being pushed from behind by another vehicle. This Court holds that the activities required to maneuver a disabled vehicle being pushed from behind along a public highway constitute operating that vehicle for purposes of the VTL and that a driver's license is required to engage in such activity. (See People v. Chin, supra; People v. Marriott, supra.)

The Court is cognizant of the holding of People v. Hoffman, 53 Misc.2d 1010, 280 N.Y.S.2d 169 to the effect that "operating" a motor vehicle requires, at least, that the vehicle be operable.

However, Hoffman concerned an automobile rendered inoperable by a collision prior to any police presence at the scene. The vehicle was not capable of being moved and the police witness had no personal knowledge that the Defendant was the operator of the vehicle at the time of or prior to the collision. Here, the police personally observed the vehicle moving along the highway with the Defendant behind the wheel. Even without the engine running, a vehicle is operable when the mechanisms of the automobile are used for the purpose of putting the automobile in motion and the automobile is, in fact, moving.

The...