People v. Sowle
| Decision Date | 29 December 1971 |
| Citation | 327 N.Y.S.2d 510,68 Misc.2d 569 |
| Parties | The PEOPLE of the State of New York v. Philip A. SOWLE, Defendant. |
| Court | New York County Court |
Thomas M. Persico, Dist. Atty., Fulton County, Gloversville, for the people.
Paul F. Brown, Brown & Brown, Ballston Spa, for defendant.
This is an appeal by the defendant from a judgment of conviction, after a jury trial in the Justice Court of the Town of Broadalbin, convicting defendant of violating Section 410 of the Vehicle and Traffic Law for which he was fined the sum of $50.00 and which he paid.
Defendant appeals on the grounds that the People failed to produce evidence sufficient to make out a prima facie case and to prove, beyond a reasonable doubt, that the area on which the defendant was operating an alleged unregistered snowmobile was a public highway; that the verdict of the jury was against the weight of the evidence; and that the court committed errors in its rulings on objections and in its charge to the jury.
On January 3, 1970, at about 12:30 in the morning, the defendant was operating a snowmobile on an area adjoining the paved portion of the State Highway designated as Route 29, in the Town of Broadalbin, Fulton County. A companion on another snowmobile was accompanying him. Two State Policemen in a state police car stopped the defendant and his companion and when the defendant was unable to produce a registration for the snowmobile being operated by him, he was issued a ticket charging him with violation of Section 410 of the Vehicle and Traffic Law, which provides that no snowmobile shall be operated or travel upon the public highways of this State without first being registered. The question is whether or not the defendant was operating the snowmobile on a public highway.
Defendant submits that the People failed to prove that the area on which defendant was operating the snowmobile was a public highway. A reading of the minutes of the trial discloses that no proof or evidence was submitted by the People showing the location of the boundary line of the right of way owned by the State in the immediate location where the defendant was apprehended. Only one of the officers testified at the trial and he testified he observed both snowmobiles being operated on what he referred to as the shoulder of the road, describing it as an area immediately adjacent to the paved portion and located between the paved portion and the guard rails. The defendant and the operator of the other snowmobile both testified that they were operating the snowmobiles on what they referred to as the shoulder of the road, the same area described by the officer. At the time the officer first observed the two snowmobiles, they were proceeding in an easterly direction, but after the police car overtook the snowmobiles, the officer testified that the defendant operated his snowmobile across the highway and then proceeded in a westerly, or opposite, direction. The defendant admitted that he had been proceeding in an easterly direction and after the arrival of the police car he proceeded in a westerly direction, but that in going across the highway he had removed himself from the snowmobile and pulled it across the highway. At the request of the District Attorney the Court charged that the shoulder of the highway is part of the highway and may be used for travel, to which defense counsel objected. The Court refused to charge defense counsel's request 'that the shoulder of a road of a state road is that area where it is proved by highway markers and by proper maps and surveyors' instruments as to where State ownership begins and ends.' The Court refused to so charge.
Section 118 of the Vehicle and Traffic Law, applicable at the time of this incident, 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 traffic. This would include the shoulder of the road as part of the highway and this has been so held in La Rue v. Borrman, 260 App.Div. 337, 22 N.Y.S.2d 209, affmd. 285 N.Y. 550, 33 N.E.2d 239; Darling v. Village of Herkimer, 11 Misc.2d 593, 177 N.Y.S.2d 838, and Waterfall v. Taylor, 35 A.D.2d 619, 312 N.Y.S.2d 753. Therefore, if defendant had been operating the snowmobile on the shoulder of the highway known as State Road 29, within the boundaries of the State right of way, without having first registered the snowmobile, he would be...
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