People v. Kolinsky
| Decision Date | 18 November 1981 |
| Citation | 111 Misc.2d 633,444 N.Y.S.2d 845 |
| Parties | The PEOPLE of the State of New York, v. Joseph KOLINSKY, Defendant. |
| Court | New York City Court |
John J. Santucci, Dist. Atty., Queens County, Kew Gardens, for the People; Daniel T. McCarthy, Asst. Dist. Atty., Kew Gardens, of counsel.
Robert Wright Nerboso, Kew Gardens, for defendant.
On September 11, 1981 the People moved the case against defendant for trial before this Court sitting as a trier of the facts and the law. Testifying on behalf of the People was Police Officer Andrew Petriello of the New York City Police Department. Officer Petriello testified that on June 28, 1981, while on radio motor patrol duty with a brother officer, at about 12:15 in the afternoon, he heard a loud noise which he characterized as a motorcycle being operated in the vicinity of 73rd Avenue and Clearview Expressway in Cunningham Park, Queens, New York. He positioned his radio motor patrol car to intercept the defendant. Officer Petriello exited his vehicle while in uniform and observed the defendant operating the motorcycle which was headed directly at him and the patrol car. The officer testified that the motorcycle had no vehicle plate and the defendant was not wearing a helmet. When the defendant came close to the officer, Officer Petriello waved him down in order to check for further vehicle and traffic infractions and to issue summonses for failure to have the vehicle registered. The defendant made a sharp turn after looking in the officer's direction and drove his motorcycle away from where the officer was standing. The motorcycle almost struck the radio motor patrol car and Officer Petriello grabbed the motorcycle. The police officer heard the gear of the vehicle engage and it picked up speed with the officer holding on. The officer was dragged for about one hundred feet before he was able to overturn the motorcycle. The defendant was placed under arrest and charged with felonious assault, resisting arrest and six vehicle and traffic law (hereinafter referred to as V.T.L.) violations: to wit, operating a motor vehicle without a license; operating an uninsured motor vehicle; operating a vehicle without registration; operating a vehicle that was uninspected; failing to obey traffic control signals, and failing to comply with a lawful order of a policeman. Defendant was also charged with resisting arrest.
The felony charge was reduced to the misdemeanor of assault, third degree. The officer sustained injuries which caused substantial pain, suffering and disability, and which necessitated hospital treatment.
The defendant testified on his own behalf claiming that he did not see the officer and was not aware that the officer had grabbed on to the "dirt bike" he was operating, until the officer had actually grabbed on to said vehicle, and that he had no intention of disobeying the officer or fleeing from him.
No proof was adduced by the People as to the exact nature of the vehicle being operated by the defendant. It was characterized in testimony as a "motorcycle" or a "dirt bike." Accordingly, we must go to the Vehicle and Traffic Law in order to determine whether or not the vehicle operated by the defendant was cognizable by said law as one which should be registered, etc. Section 121-b of the V.T.L. defines a "limited use motorcycle" as one having a maximum performance speed of not more than twenty miles-per-hour and calls said vehicle a Class "C" Limited-Use Motorcycle. Since there was no testimony as to the maximum operational performance of the motorcycle, the defendant must receive the benefit of the category of vehicle he was operating wherein the requirements are less stringent than for the use and operation of a Class "A" or "B" Motorcycle. One may operate a limited use class C vehicle only when he has a valid driver's license or learner's permit which permits operation of a motor vehicle or passenger automobile. (Section 2266 V.T.L.) No motor vehicle may be operated on a public highway without first being registered. (Section 401 of the V.T.L.) A motor vehicle is defined as any vehicle operated or driven upon a public highway which is propelled by any power other than muscular power. (Section 125 of the V.T.L.) No person may operate a limited-use vehicle on a public highway without same being registered. (Emphasis ours). Section 226(1) of the V.T.L.) The plates of a limited-use vehicle must be displayed. (Section 2264 of the V.T.L.) No insurance is required for a class C limited-use vehicle, nor does such vehicle have to be inspected. (Sections 2266 and 2265(2)(b) of the V.T.L., respectively.) A public highway is defined as "any highway, road, street, avenue, alley, public place, public driveway or any other public way. (Section 134 of the V.T.L.)
It is apparent that unless Officer Petriello had a right to stop the defendant and issue a summons to him, or in the alternative, place him under arrest for violating provisions of the V.T.L., his action in seeking to restrain the defendant and the injuries he sustained thereby, could not be chargeable to the defendant without a clear showing of attenuation, nor could there be a "resisting arrest." People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39; People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872.
A police officer has a right to enforce the Vehicle and Traffic Law through the issuance of a summons or, where a violation is noted, may arrest the violator (140.10 C.P.L.). The question now presented is whether the operation of a class "C" limited-use vehicle in a park area constitutes a violation of any of the Vehicle and Traffic provisions with which the defendant was charged. Sections 306(b) Uninspected Vehicle; 319.1 Uninsured Vehicle; 401 Unregistered Vehicle; 509.1 Unlicensed Operator, apply to vehicles and individuals operating vehicles on "public highways". Sections 1110, Disobeying Road Markings, and 1102, Failure to Comply with Lawful Orders of a Police Officer of the V.T.L. apply to vehicles being operated on a "highway or private road." Section 118 of the V.T.L. defines "highway" as "the entire width between the boundary lines of every way, publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." Accordingly, the definition of "highway" is rather strict in application, while that of "public highway" is...
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...of Westchester v Winstead, 231 AD2d 630 [2d Dept 1996]; People v Haszinger, 149 Misc 2d 856, 859 [Nassau Dist Ct 1991]; People v Kolinsky, 111 Misc 2d 633, 636 [Crim Ct, Queens County 1981]). The only fact, albeit undisputed, is that the excavator was in operation at a solid waste transfer ......
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...public highway as "any highway, road, street, avenue, alley, public place, public driveway or any other public way." People v. Kolinsky, 111 Misc.2d 633, 444 N.Y.S.2d 845; People v. Edsall, 111 Misc.2d 767, 444 N.Y.S.2d 994; People v. Ostermeier, 118 Misc.2d 68, 460 N.Y.S.2d Therefore, the ......
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People v. Madson, 2005 NY Slip Op 52008(U) (NY 12/5/2005)
...to place the Defendant under arrest, causing Officer Grennan to sustain a fractured wrist, and other injuries. In People v. Kolinsky, 111 Misc 2d 633, 637-638, 444 NYS2d 845 (Crim. Ct., Queens Cty,1981), a motorist was found guilty of reckless assault when he accelerated his motorcycle as t......