People v. Pardee
| Decision Date | 21 July 1952 |
| Citation | 202 Misc. 238 |
| Parties | The People of the State of New York, Plaintiff,<BR>v.<BR>John E. Pardee, Defendant. |
| Court | New York District Court |
Dominic J. Capeci for defendant.
George M. Fanelli, District Attorney (John J. O'Brien of counsel), for plaintiff.
The defendant applies for an order dismissing the indictment herein upon the ground that the facts stated therein are insufficient to constitute the crime with which he is charged. The indictment charges the defendant with the crime of "Feloniously operating a motor vehicle while in an intoxicated condition after having been convicted of operating a motor vehicle while under the influence of intoxicating liquor", and alleges, in substance, that in 1943, the defendant was convicted in the State of Connecticut of the crime of operating a motor vehicle while under the influence of intoxicating liquor, and further, that in 1950, in this State, the defendant feloniously operated a motor vehicle while in an intoxicated condition.
That part of subdivision 5 of section 70 of the Vehicle and Traffic Law of this State which is pertinent, provides as follows: . The primary and critical question presented is whether a felony indictment under the last sentence of the quoted statute can be based upon a prior conviction in the State of Connecticut for operating a motor vehicle while under the influence of intoxicating liquor. This question appears to be interesting and novel, for able counsel and this court, after careful research, have been unable to find any decision directly in point.
The statute in question, being penal in character, must be strictly construed (People v. Strauss, 260 App. Div. 880) and its scope is not susceptible to limitation or extension by judicial interpretation to cover a case not clearly within the expressed legislative intent. (People ex rel. Carollo v. Brophy, 294 N.Y. 540, 544; Matter of Donegan, 282 N.Y. 285, 292.) So too, our highest court has held that "A statute must be construed and applied as it is written by the Legislature, not as some judges may believe it should have been written." (People v. Olah, 300 N.Y. 96, 102.)
It is to be noted that in the last sentence of the quoted statute, the prior conviction therein provided for ("operating a motor vehicle or motor cycle while in an intoxicated condition") is couched in the same phraseology as is contained in the first sentence of said statute wherein the violation, when committed in this State, is defined as a misdemeanor. Nowhere in this statute does it appear that the prior conviction may be one which occurred in any other State. In fact, the Legislature has seen fit to omit from the quoted statute all of the following phrases which are respectively employed in various portions of section 71 of the Vehicle and Traffic Law to indicate an intent and purpose that the particular offense or act (referred to in the respective part or portion of said § 71) when committed in another State shall result in a penalty or forfeiture in our State: "whether the conviction was had in this state or elsewhere" — appearing in paragraph (a) of subdivision 2 of said section 71; "an offense consisting of operating a motor vehicle or motor cycle while under the influence of intoxicating liquor where the conviction was had outside this state" — appearing in paragraph (b) of subdivision 2 of said section 71; and "in this state or in another state or jurisdiction" — appearing in paragraph (h) of subdivision 3 of said section 71.
The rule is well settled that in the absence of express statute, conviction under the laws of another...
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State v. Davis, 933
...or subsequent similar offense was committed in New Hampshire. The leading case in point, followed in Cardin, is People v. Pardee, 202 Misc. 238, 117 N.Y.S.2d 515 (Cty.Ct.1952), affirmed without opinion, 282 App.Div. 735, 122 N.Y.S.2d 902 (App.Div.1953), affirmed on further appeal without op......
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...and Traffic Law, and which may involve due process. The statute, being penal in character, must be strictly construed. (People v. Pardee, 202 Misc. 238, 117 N.Y.S.2d 515, affd.282 App.Div. 735, 122 N.Y.S.2d 902, affd. 306 N.Y. 660, 116 N.E.2d 495) The admission in evidence of the results of......
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People v. Gagne
...by defendant's pre-trial motion to dismiss two counts of this indictment (CPL § 210.20) is whether a 33 year old case, People v. Pardee, 202 Misc. 238, 117 N.Y.S.2d 515, affd. 282 App.Div. 735, 122 N.Y.S.2d 902, affd. 306 N.Y. 660, 116 N.E.2d 495--in which the courts of this state held that......
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...by defendant herein, but the conclusion of this Court to a degree rests upon the reasoning of the courts reported in People v. Pardee, 202 Misc. 238, 117 N.Y.S.2d 515 (1952); Aff'd. 282 App.Div. 735, 122 N.Y.S.2d 902 (1953); Aff'd. 306 N.Y. 660, 116 N.E.2d 495 (1953). The defendant therein ......