People v. Ramirez

• Decision Date: 18 May 2001
• Citation: 727 N.Y.S.2d 599,188 Misc.2d 170
• Court: New York Criminal Court
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>JESUS RAMIREZ, Defendant.

188 Misc.2d 170

727 N.Y.S.2d 599

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.JESUS RAMIREZ, Defendant.

May 18, 2001.

Legal Aid Society, Kew Gardens (Kenneth Finkelman of counsel), for defendant.

Richard A. Brown, District Attorney of Queens County (Lorin Rocklin of counsel), for plaintiff.

OPINION OF THE COURT

ROBERT M. RACITI, J.

Defendant is charged with unlawful solicitation of ground transportation at an airport, pursuant to Vehicle and Traffic Law § 1220-b. His bench trial was conducted before this Court, commencing on January 24, 2001. At the close of the People's case, defendant moved for a trial order of dismissal, alleging that one or more elements of the alleged crime had not been proved by legally sufficient evidence. (CPL 290.10, 70.10.) Decision on that motion was reserved by the Court. At the conclusion of all of the evidence, the defense renewed its motion to dismiss. A briefing schedule was set and both sides submitted briefs addressing the legal issues of concern to the Court.

Vehicle and Traffic Law § 1220-b (1) provides:

"No person shall unlawfully solicit ground transportation services at an airport. A person unlawfully solicits ground transportation services at an airport, when, at an airport, such person, without being authorized to do so by the airport operator, or without having made a prior agreement to provide ground transportation services to a specific patron, engages or offers to engage in any business, trade or commercial transaction involving the rendering to another person of any ground transportation services from such airport."

Vehicle and Traffic Law § 1220-b became effective on November 1, 1994, pursuant to chapter 313, § 3 of the Laws of 1994. The laudable object of this legislation was to control "unregulated" airport "hustlers" who solicit airport passengers with offers of transportation, and then charge exorbitant rates and engage in other unsavory business practices. (See letter of K. Bennett, State of NY Dept of Motor Vehicles, to Counsel to Governor, July 15, 1994, Bill Jacket, L 1994, ch 313.) Deserving of special protection in this matter are the especially vulnerable tourists who might be unaware that legitimate and regulated ground transportation is also available. (See letter of C. Shulman, President, Borough of Queens, July 15, 1994, Bill Jacket, L 1994, ch 313.)

As written, the statute does not single out any particular form of prohibited solicitation of ground transportation. Rather, it employs intentionally broad language—"engages or offers to engage in any business"—so as to forbid not just hawking and hustling activities, but any manner of sale of ground transportation at the airport by an unauthorized vendor. That said, it must also be noted that the two prominent exceptions that help define unlawful solicitation draw breath from this same broad-based perspective. As such, a natural reading of the first exception seems to remove from the scope of section 1220-b any form of ground transportation solicitation if in fact the operator is "authorized" by the Port Authority to provide ground transportation at the airport. In other words, the statute itself does not forbid hawking of services by an authorized service provider. This reading is consistent with the apparent legislative intent to regularize the sale of ground transportation services through a vendor authorization system, and is commanded by the statute's deliberate failure to identify any particular forms of solicitation that are prohibited. It can only be assumed that regulation of the particular conduct of authorized ground transportation providers is accomplished by internal regulations or contractual agreement.

The People, however, submit that "no person shall solicit ground transportation services." In support of that position, they do not directly rely upon Vehicle and Traffic Law § 1220-b, but instead attempt to incorporate by reference into that statute a portion of the Port Authority Rules and Regulations that provides:

"No person shall, in any area or any other appurtenance of an air terminal which said person does not occupy pursuant to a lease, license, or permit with or from the Port Authority, conduct any business or trade including the sale, or offer of sale, or any merchandise or service."

In the first place, it appears that the very general language of this portion of the regulations pertains to all airport merchants, including ground transportation providers. In any event, this agency regulation is not specifically incorporated into Vehicle and Traffic Law § 1220-b, and therefore certainly could not expand its criminal scope (see People v Gottlieb, 36 NY2d 629, 631). Moreover, its citation merely begs the question before the Court since it is applicable only to merchants who are without a "permit" to do business at the airport—the very point at issue in this case.

The second statutory exception picks up where the first ends. It permits privately prearranged pickup and drop-off at the airport by companies or individuals who are not otherwise authorized to do business there. The exception focuses on the prearranged nature of the permitted activity by specifying that it applies only where a "specific patron" has made "a prior agreement" with a particular livery service or individual. It is with respect to this exception that the People can correctly contend that an unauthorized ground transportation provider may never hawk ground transportation services at the airport. That is so because even if an otherwise unauthorized provider has made a prearranged agreement with a particular customer, the provider cannot in turn solicit additional or substitute customers at the airport, since no preagreement would have existed with respect to those patrons.

The Court agrees with defendant that the People have the burden to allege and prove at trial the nonapplicability of the first exception. In People v Kohut (30 NY2d 183, 188), the Court of Appeals held that where the "defining statute contains an exception, the indictment must allege that the crime is not within the exception." Following that rule, where the exception is spelled out as a material part of an offense, appellate courts have placed upon the People the...