People v. Kassover

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

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 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. 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 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.' 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.

The magistrates' court which is a criminal court and whose proceedings are judicial is embraced in the foregoing. We may need to be reminded that an end, no matter how desirable, can never justify impermissible means. People v. Dioguardi, 8 A.D.2d 426, 188 N.Y.S.2d 84, 93; People v. Tinston, 6 Misc.2d 485, at page 491, 163 N.Y.S.2d 554, at page 561. 'The fact that a case occurs in the Magistrates' Court does not mean that the legal rights of the defendant are less. No court is out of bounds to the law. Desirable ends do not justify unlawful means.' People v. Tinston, supra.

In the recent case of Raley v. State of Ohio, 360 U.S. 423, 79 S.Ct. 1257, 1266, 3 L.Ed.2d 1344, decided June 22, 1959, the highest court of the land repeated the warning so often sounded by courts throughout the nation: 'A state may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them.' The Commissioner of Traffic of the City of New York does not escape this prohibition. Penal statutes should be clear and unambiguous so that he who runs may not only read but readily understand. People v. Pestronk, 3 Misc.2d 845, 157 N.Y.S.2d 492.

'Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited. * * * 'Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid.'' Citing cases. People v. Grogan, 260 N.Y. 138, 145, 183 N.E. 273, 275, 276, 86 A.L.R. 1266.

In the very recent case of People v. Caswell-Massey Co., Ltd., 6 N.Y.2d 497, 190 N.Y.S.2d 649, 652, the Court of Appeals reversed the conviction for violation of Sec. 118 c. of the New York City Sanitary Code, regulating the dispensing of barbiturates on prescription, holding that the section does not meet the requirements of precision for a criminal statute. The Court said:

'We hold that subdivision 3 of section 118c * * * is not clear and explicit enough to meet the requirement that 'Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited' and that 'They must afford some comprehensive guide, rule or information as to what must be done and what must be avoided, to the end that the ordinary member of society (emphasis added) may know how to comply with its requirements' (People v. Grogan, 260 N.Y. 138, 145, 183 N.E.273, 275; People v. Vetrie, 309 N.Y. 401, 406, 131 N.E.2d 568, 570; People v. Benc, 288 N.Y. 318, 43 N.E.2d 61; People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949; United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200). A criminal statute must give 'unequivocal warning' to citizens, of the rule which is to be obeyed, and, especially as to acts not mala per se, there must be a clear and positive expression of legislative intent to make them criminal (People v. Vertrie, supra, and cases cited therein at 309 N.Y. 405, 406, 131 N.E.2d 568, 570).'

In the Grogan case, supra, 260 N.Y. at page 149, 183 N.E. at page 277 (a traffic infraction was involved), the court described the question as '* * * small indeed in its consequences, but very important in principle. * * *'

In People v. Shakun, 251 N.Y. 107, 113, 167 N.E 187, 189, 64 A.L.R. 1066, the court laid down the following rule of construction for a criminal statute:

'It is well settled that a criminal statute should narrowly be construed; that acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal.'

And in People v. Firth, 3 N.Y.2d 472, 474, 168 N.Y.S.2d 949, 950, Mr. Justice Desmond, speaking for the court, said:

'This conviction was not for a crime but for a so-called 'traffic infraction' (Vehicle and Traffic Law, § 2, subd. 29). However, there are applicable to such prosecutions the rules of the criminal law (People v....

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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 Court of Appeals
    • June 3, 1968
    ... ... We only say in agreement with the trial court that the amendments have no retroactive application to respondents. (See People v. Allied Architects Assn., 201 Cal. 428, 436-437, 257 P. 511.) Moreover, " * * where a board is granted the power to revoke a license for certain ... 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" ... ...

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