People v. Morris
| Decision Date | 23 January 1986 |
| Citation | 499 N.Y.S.2d 329,131 Misc.2d 55 |
| Parties | PEOPLE of the State of New York v. Sandra C. MORRIS, Defendant. |
| Court | New York City Court |
On August 9, 1985, at approximately 9:30 P.M. at South Fulton Avenue and West 7th Street in the City of Mount Vernon, defendant was issued simplified traffic information No. 871151 charging her with violating Chapter 256(5)(A) of the Code of the City of Mount Vernon. Immediately below this recitation, a box marked speeding was checked and inserted was, "44 mph in 30 mph zone."
Defendant was arraigned on August 20, 1985, and requested a supporting deposition. The supporting deposition was forwarded to the defendant and the matter scheduled for trial on November 27, 1985.
At trial, defendant appeared with counsel who filed a written motion to dismiss on the ground that Section 1180(d) of the Vehicle and Traffic Law of the State of New York rather than City Ordinance Chapter 256(5)(A) was the sole authority upon which the violation of a city speed limit could be prosecuted. Defense counsel argued that this "defect" was jurisdictional and that the Court had no authority to allow any amendment to the information, citing People v. Kramer, 55 Misc.2d 550, 285 N.Y.S.2d 763 (1967), People v. Scanlan, 27 Misc.2d 442, 211 N.Y.S.2d 635 (1961), and Opinion of the State Comptroller 62-937 (1962), as well as two unreported cases from the City Courts of Yonkers and New Rochelle.
In either partial or complete opposition to these cases, the Corporation Counsel's offices cites People v. Levin, 93 Misc.2d 106, 402 N.Y.S.2d 324 (1978), People v. Blattman, 50 Misc.2d 606, 270 N.Y.S.2d 903 (1966), People v. Weale, 52 Misc.2d 889, 277 N.Y.S.2d 363 (1967), and People v. Demar, 65 Misc.2d 465, 317 N.Y.S.2d 676 (1970).
It is obvious from reading Section 1180(d) of the VTL that it contemplates by general reference and incorporates any and all local ordinances establishing speed limits within communities, as long as these local ordinances were lawfully passed pursuant to procedures outlined in the VTL.
The Court is sure that all parties would agree that without local ordinances establishing speed limits within the City of Mount Vernon, no prosecution could be maintained under VTL Section 1180(d).
The argument that an accusatory instrument must fall because the only authority to prosecute for a violation of this nature is under the VTL in certain cases is very persuasive. The Court feels this interpretation would result in the dismissal of the accusatory instrument in any case where the local ordinance proscribes activities that are either duplicated or in conflict with the VTL (Section 1600, VTL).
One need not look far from Section 1180(d) where this duplication and/or conflict argument would be controlling. For example, if a local ordinance were cited rather than VTL Sections 1180(a) or 1180(e), dismissal would be clearly warranted because these sections of the VTL do not expressly acknowledge and incorporate existing local ordinances.
In the matter before the Court, this is not the case. City Ordinances similar to Chapter 256(5)(A) are authorized in the VTL within Section 1180(d) as well as elsewhere in the VTL. In cases of this nature where during trial an essential element to be proven would be the enactment of an established speed limit by local ordinance, the argument by defense counsel that the local ordinance under VTL Sections 1600 and 1643 is in conflict and/or duplicitous loses strength.
This determination does not mean that the Court disagrees with defendant's position that it was the desire of the state legislature to have speed infractions of this nature prosecuted under Section 1180(d) of the VTL rather than by local ordinance. Indeed the Court agrees that this was its intention and that the preferred prosecution in cases of this nature would be under the VTL rather than local ordinance.
This "preference" does not necessarily require that the information be dismissed. This Court takes the view that if the local ordinance is duplicitous and/or in conflict of the VTL or established without any authority within the VTL, then the citing of that local ordinance on the accusatory instrument would be jurisdictional. As with any jurisdictional defect the Court would be without authority to allow any amendment to correct that defect.
But, as in this case, where there is no doubt that the local ordinance is not in violation of any VTL section regarding conflict and is expressly stated in the VTL to be the authority for setting the speed limits within the City, the citing of only the local ordinance is not a jurisdictional defect.
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