People v. McGee

CourtNew York Town Court
Citation97 Misc.2d 360,411 N.Y.S.2d 514
PartiesPEOPLE of the State of New York, Plaintiff, v. Brian P. McGEE, Defendant.
Decision Date29 November 1978

Page 514

411 N.Y.S.2d 514
97 Misc.2d 360
PEOPLE of the State of New York, Plaintiff,
v.
Brian P. McGEE, Defendant.
Amherst Town Court, Erie County.
Nov. 29, 1978.

Page 515

Edward C. Cosgrove, Dist. Atty., by Manuel S. Wortzman, Asst. Dist. Atty., Erie County, for the People.

Paul J. Cambria, Buffalo, for defendant.

DECISION

SHERWOOD L. BESTRY, Town Justice.

This is a motion to dismiss a uniform traffic information charging defendant with a violation of section 397 of the Vehicle and Traffic Law, on the grounds that the statute is unconstitutional.

Section 397 of the Vehicle and Traffic Law proscribes certain conduct. The section is not divided into subdivisions, but a reading of the statute clearly indicates that three separate types of conduct are prohibited, which prohibitions will be referred to herein as prohibitions # 1, 2 and 3.

The statute makes it a misdemeanor for the following conduct committed by any person not a peace officer:

1. who equips a motor vehicle with a radio receiving set capable of receiving signals on the frequencies allocated for police use, or

2. knowingly uses a motor vehicle so equipped or

3. who in any way knowingly interferes with the transmission of radio messages by the police.

The exceptions to the foregoing are persons who have first secured permits to do so from a person authorized by the local governing body or board of the City, Town or Village in which the applicant for the permit resides. Any applicant who lives outside a City or Village in a County having a county police department must obtain the permit from the Board of Supervisors.

Each of the prohibitions in the statute is separate from the other two and can either stand or fall on its own merits when subjected to constitutional attack.

In the instant case, it is readily determinable from reading the supporting deposition that the defendant is charged with a violation of prohibition number one.

The rationale behind the statute was to prevent criminals from listening to police broadcasts in their automobiles, either prior to or after their commission of a crime; and to prevent the jamming of the air waves during the police broadcasts.

Defendant contends that the field of regulation of air waves has been pre-empted by Congress by delegating such authority to the Federal Communications Commission, which has exclusive licensing power.

Therefore, defendant argues, the states are prohibited from legislating in this area.

The F.C.C....

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