People v. Kavanaugh
| Decision Date | 15 October 1986 |
| Parties | PEOPLE of the State of New York, v. Gregory KAVANAUGH, Defendant. |
| Court | New York District Court |
Patrick Henry, Dist. Atty. of Suffolk County, for the People.
Howard P. Fritz, Mineola, for defendant.
The defendant is charged with violating regulations made pursuant to Transportation Law 14-f, the transportation of hazardous materials. He is charged operating with improper placarding, operating with improper shipping papers, operating with defective steering, and operating with insufficient air pressure in violation of 49 CFR 177.823, 177.817, 369.3(a)(1), and 393.50(a) as adopted in 17 NYCRR 507.4. The defendant moves to dismiss for insufficiency of the accusatory instruments and on the grounds that the statute defining the offense is unconstitutional or otherwise invalid. See CPL 170.35(1)(a) and (c).
The defendant claims that the informations are insufficient on their face in that they do not contain factual allegations establishing each element of the offense and the defendant's commission thereof. See CPL 100.40(1)(c). The prosecutor, on the contrary, denies that the accusatory instruments are informations and claims that they are simplified informations, sufficient without any factual allegations. See CPL 100.40(2), 100.25. In the recent case of People v. Corn, N.Y.L.J., November 13, 1985, p. 15, col. 3, the Appellate Term, Second Department, found that the form of the instrument used in the instant case could be used as a simplified traffic information. An issue not raised by the parties is whether a simplified information may be used for violations of the Transportation Law. A simplified traffic information may be used for traffic infractions and misdemeanors relating to traffic. See CPL 100.10(2)(a). In People v. Ferri, 106 Misc.2d 311, 431 N.Y.S.2d 765, the defendant was charged on simplified traffic information with operating a truck without a highway use tax permit in violation of Tax Law 512(1)(a). The court found that the simplified traffic information can be used to accommodate offenses found in statutes other than the Vehicle and Traffic Law that relate to traffic. The same conclusion is reached in this matter as it pertains to a violation of the Transportation Law and therefore this branch of the defendant's motion is denied.
As to the second branch of the motion, the defendant makes a number of claims as to the unconstitutionality of the statutory framework and the court will address each issue that is raised. With respect to the statutory framework, in 1975 Congress enacted the Federal Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq. authorizing the Secretary of Transportation to make certain regulations defining hazardous materials and how they should be regulated. Further, in 49 U.S.C. § 1811(a) Congress declared that any requirement of a State or a subdivision thereof which is inconsistent with any requirement of the Hazardous Materials Transportation Act or with a regulation issued under the Act, is preempted by the Federal Law.
In accordance with the above, the New York Legislature enacted Transportation Law Sec. 14-f which empowered the Commissioner of Transportation to make rules and regulations and made it unlawful to transport hazardous materials in violation of such rules and regulations. Further Transportation Law 14-f(1)(a) provides that such rules and regulations shall be no less protective of public safety than the rules and regulations promulgated by the federal government with respect to the transportation of hazardous waste materials, thereby avoiding preemption by the Federal Law.
In furtherance of the statute, the Commissioner of Transportation enacted rules and regulations in 17 NYCRR Part 507 Transportation of Hazardous Materials. In 17 NYCRR 507.4(a), the commissioner adopted parts 171 through 179 and 390 through 397 of title 49 of the Code of Federal Regulations revised as of November 11, 1983 as the standards for transporting hazardous materials.
The defendant first claims that the incorporation by reference of Federal Regulations into the state regulations violates the New York State Constitution Article III, Section 16. That section reads:
"No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act."
Initially, legislative enactments are presumed valid and the burden is upon the person attacking the validity of the statute that it is unconstitutional beyond a reasonable doubt. See Matter of Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539; People v. Perez 56 Misc.2d 424, 289 N.Y.S.2d 450. Further, the proscription of Article III, section 16, of the N.Y.S. Constitution applies to statutes and not to rules or regulations. The purpose of the provision is to prevent the incorporation into legislative enactments, by mere reference to some existing statute, a clause or provision affecting public or private interests to an extent or in a manner not disclosed upon the face of the act, and of which the legislators might be ignorant of at the time. See People ex rel. Commissioners v. Banks, 67 N.Y. 568; People ex rel. NY Elec. Lines Co. v. Squire, 107 N.Y. 593 aff'd 145 U.S. 175, 12 S.Ct. 880, 36 L.Ed. 666. A further indication that this provision is not applicable to rules and regulations made by a commissioner, is found in Article III sec. 21 of the N.Y.S. Constitution. This section provides that section 16 of Article III is not applicable to a bill, or amendment to a bill, which is recommended to the legislature by commissioners or public agency appointed or directed pursuant to law to prepare revisions, consolidations or compilations of statutes.
Next, the defendant claims that Transportation Law 14-f and 17 NYCRR 507.4 are unconstitutionally vague and indefinite. The defendant does not point to any phrase or wording as being vague or indefinite. The defendant's real complaint is that the Federal regulations referred to in 17 NYCRR 507.4 are inaccessible and the defendant attempts to convert this complaint into a constitutional objection. Statutes should be clear and positive, giving unequivocal warning of the rule to be obeyed. See People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949, 146 N.E.2d 682. Unless the statute is clear and positive, it leaves virtually unfettered discretion in the hands of law enforcement officials and thereby may encourage arbitrary and discriminatory administration. See People v. Illardo, 48 N.Y.2d 408, 423 N.Y.S.2d 470, 399 N.E.2d 59. Clearly, the statutory framework of Transportation Law 14-f is clear and positive and leaves no discretion for arbitrary or discriminatory enforcement.
The defendant also claimed that the commissioner was not empowered by Transportation Law 14-f to adopt Federal regulations but must develop an entirely new set of rules and regulations de novo. Transportation Law 14-f(1)(a) reads in part:
The commissioner concluded that the best way to comply with the mandate of the statute would be to adopt by reference the regulations of the Federal government. In Tommy & Tina Inc. v. Dept of Consumer Affairs, 95 A.D.2d 724, 464 N.Y.S.2d 132 aff'd. 62 N.Y.2d 671, 476 N.Y.S.2d 290, 464 N.E.2d 988, the court stated that "an administrative agency's construction and interpretation of its own regulations and of the statute under which it functions is entitled to the greatest weight." This court can find nothing in the statutory language that prohibits the commissioner from adopting by reference the federal rules.
Next, the defendant claims that Transportation Law 14-f unlawfully delegates the power of the Legislature to define crimes and criminal penalties in violation of Article III section I of the N.Y.S. Constitution. This section provides:
"The legislative power of this State shall be vested in the Senate and Assembly."
However, there is no constitutional prohibition against the delegation of power, with reasonable safeguards and standards, to an agency or commission to administer the law as enacted by the Legislature. See Packer Coll. Inst. v. University of the State of New York, 298 N.Y. 184, 81 N.E.2d 80. In Matter of Levine v. Whalen, 39 N.Y.2nd 510, 384 N.Y.S.2d 721, 349 N.E.2d 820, the court stated that "the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, cannot be done, but there is no valid objection to the conferring of authority or discretion as to a...
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People v. Scantlebury
...to the State and Federal Rules which lead directly to the self-same Sub. part 172.502 which is noted on the STI. See People v. Kavanaugh, 133 Misc.2d 689, 507 N.Y.S.2d 952 (Dist.Ct., Suffolk County 1986) holding that simply because Federal Regulations may not be readily accessible does not ......