People v. Kassover

CourtNew York Magistrate Court
Citation20 Misc.2d 782,191 N.Y.S.2d 54
Decision Date25 August 1959
PartiesPEOPLE of the State of New York, Plaintiff, v. Martin KASSOVER, Defendant. City Magistrates' Traffic Court, Borough of Manhattan, Part III

Page 54

191 N.Y.S.2d 54
20 Misc.2d 782
PEOPLE of the State of New York, Plaintiff,
v.
Martin KASSOVER, Defendant.
City Magistrates' Traffic Court, Borough of Manhattan, Part III.
Aug. 25, 1959.

Page 55

[20 Misc.2d 783] Thomas W. Reilly, Legal Bureau, New York City Police Department, for plaintiff.

O'Dwyer & Bernstein, New York City (Leon Hershbaum, Brooklyn, of counsel), for defendant.

CHARLES SOLOMON, City Magistrate.

The issue in this case is the validity of Section 51(a) of the New York City Traffic Regulations (July 1, 1958) established by the Commissioner of Traffic under the authority of Chapter 46 of the New York City Charter. Defendant contends it is invalid and unconstitutional because of vagueness. The court agrees. The facts as alleged in the complaint are not in dispute. The question is one of law. The Traffic Regulation reads:

'Section 51(a). Limitations on turning around. The driver of any vehicle shall not turn such vehicle so as to proceed in the opposite direction upon any street in a business district.'

The crucial words in this case are 'business district'. The New York State Vehicle and Traffic Law (July 1, 1958) at page 101 'defines' these words as follows:

§ 105. Business district. The territory contiguous to and including a highway when within any six hundred feet along such highway there are buildings in use for business or

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industrial purposes, including but not limited to hotels, banks, or office buildings, railroad stations and public buildings, which occupy at least three hundred feet of frontage on one side or three hundred feet collectively on both sides of the highway.'

The foregoing 'definition' appears under the caption Title II. Words and phrases defined. Article 10.

There is absolutely nothing in the complaint to apprise the defendant that 'business district', as used therein, is 'defined' in Sec. 105 of the Motor Vehicle and Traffic Law, or anywhere else, for that matter. It is matter of common knowledge that there are numerous 'business districts' throughout the city; sometimes they are called shopping centres. [20 Misc.2d 784] They resemble and differ from each other in many ways. Common experience tells that the expression means different things to different people.

The complaint charges that the defendant on June 6, 1959, at about 11:30 A.M. made a complete U-turn on West 42nd Street, between 5th and 6th Avenues, in violation of Section 51(a) of the New York City Traffic Regulations. There is not a syllable of proof in the record that the point at which the U-turn was made is in a 'business district' was 'defined' in Sec. 105 of the Vehicle and Traffic Law.

At the very outset, it should be noted that the question here presented is not whether the court as an individual or the New York City Police Department Legal bureau would colloquially refer to the area as a business district but whether these words, as they appear in the traffic regulation and as 'defined' in Section 105 of the Motor Vehicle and Traffic Law, meet the standards and requirements laid down by the courts for clarity, precision and definiteness.

From the record before the court we do not know whether the defendant made the U-turn 'so as to proceed in the opposite direction'. He may have made it for another purpose--to park, for instance. It would seem that a motorist making a U-turn and then parking, without proceeding, would not be violating the regulation. There is no proof that the defendant did 'proceed', which is defined in Webster's International Dictionary as follows: 'to move, pass or go forward or onward; to advance especially after interruption or from a given point or stage; to continue or renew motion or progress as to proceed on a journey; * * *.' And in Funk and Wagnall's New College Standard Dictionary, we find the word defined as follows: '1. To go on or forward; continue in progress; especially to renew motion or action after rest or interruption.' It does not appear the defendant did any of these things.

The Traffic Regulation here under consideration represents an attempted exercise of the police power which, while necessarily broad and comprehensive, is restricted by constitutional limitations, and does not relieve the public authority responsible for the regulation of the obligation

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to comply with the clearly defined standards of clarity and precision repeatedly laid down by our courts, including the Supreme Court of the United States.

The regulation in question is penal in nature. A penal law is one which inflicts a penalty for its violation. See 31A Words and Phrases, Penal Law, beginning at page 392. 'A magistrate's court is a criminal court. Its proceedings are judicial.' [20 Misc.2d 785] People v. Zelkowitz (People v. Singer), 1st Dept. 1959, 8 A.D.2d 161, 186 N.Y.S.2d 848, 850. Since this court takes the position that the regulation in question, notwithstanding the 'definition' in the State Motor Vehicle and Traffic Law, is unconstitutional it is well before we proceed any further to note the following:

'Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them; for the judges of the state courts are required to take an oath to support that constitution, and they are bound by it, and the laws of the United States made in pursuance thereof * * * as the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding'. If they fail therein, and withhold or deny rights, privileges, or immunities secured by the constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the state in which the question could be decided, to this court for final and conclusive detgermination'. Robb v. Connolly, 111 U.S. 624, 4 S.Ct. 544, 551, 28 L.Ed. 542. See also Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 831, 3 L.Ed.2d 900.

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2 practice notes
  • People v. Kassover
    • United States
    • New York Court of Special Sessions
    • October 3, 1960
    ...then rested and again moved to dismiss the complaint. The court again reserved decision and later, in a long opinion (People v. Kassover, 20 Misc.2d 782, 191 N.Y.S.2d 54) granted the motion made at the end of the People's case, holding that Section 51(a) of the New York City Traffic Regulat......
  • Cal Pacific Collections Inc. v. Powers
    • United States
    • California Court of Appeals
    • June 3, 1968
    ...proceed with the hearing and determination" of misdemeanor charges in specified classes of cases. But see People v. Kassover (1959) 20 Misc.2d 782, 191 N.Y.S.2d 54 (City Magistrates Traffic Court) which also borrows a definition from Webster to the effect that "proceed" means......
2 cases
  • People v. Kassover
    • United States
    • New York Court of Special Sessions
    • October 3, 1960
    ...then rested and again moved to dismiss the complaint. The court again reserved decision and later, in a long opinion (People v. Kassover, 20 Misc.2d 782, 191 N.Y.S.2d 54) granted the motion made at the end of the People's case, holding that Section 51(a) of the New York City Traffic Regulat......
  • Cal Pacific Collections Inc. v. Powers
    • United States
    • California Court of Appeals
    • June 3, 1968
    ...proceed with the hearing and determination" of misdemeanor charges in specified classes of cases. But see People v. Kassover (1959) 20 Misc.2d 782, 191 N.Y.S.2d 54 (City Magistrates Traffic Court) which also borrows a definition from Webster to the effect that "proceed" means......

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