Smilow v. State Dep't of Motor Vehicles

• Decision Date: 08 May 2012
• Citation: 95 A.D.3d 1023,2012 N.Y. Slip Op. 03652,944 N.Y.S.2d 248
• Parties: In the Matter of Mark D. SMILOW, petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, et al., respondents.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1023
944 N.Y.S.2d 248
2012 N.Y. Slip Op. 03652

In the Matter of Mark D. SMILOW, petitioner,
v.
NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 8, 2012.

Weiss & Lurie, New York, N.Y. (Mark D. Smilow, pro se, of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Laura R. Johnson of counsel), for respondents.

WILLIAM F. MASTRO, A.P.J., RUTH C. BALKIN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

[95 A.D.3d 1023]Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Appeals Board dated July 13, 2010, which confirmed the findings of an administrative law judge, made after a hearing, that the petitioner violated Vehicle and Traffic Law § 1225–c(2)(a), and imposed a penalty.

ADJUDGED that the determination is confirmed, the petition is denied, and the

[944 N.Y.S.2d 249]

proceeding is dismissed on the merits, with costs.

[95 A.D.3d 1024]The determination that the petitioner “operate[d] a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle [was] in motion” (Vehicle and Traffic Law § 1225–c [2][a] ) was supported by substantial evidence ( see generally Matter of Peterson v. State of N.Y. Dept. of Motor Vehs., 90 A.D.3d 1055, 934 N.Y.S.2d 837,lv. denied18 N.Y.3d 810, 2012 N.Y. Slip Op. 69140, 2012 WL 1085494 [2012] ). A police officer credibly testified at a hearing that she had observed the petitioner, while he was driving his car westbound on Hamilton Avenue, with a “cell phone ... in [his] right hand ... approximately three to five inches from [his] right ear.” At the hearing, aside from disputing the exact distance between the phone and his ear, the petitioner conceded that the police officer's testimony was “pretty accurate.” According to Vehicle and Traffic Law § 1225–c(2)(b), “[a]n operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaged in a call” (id.). That presumption was not rebutted in this case.

Contrary to the petitioner's contention, his claim that the device that he was using at the time of the offense was a “speaker enabled iPhone” does not negate the police officer's testimony that, while the petitioner was driving a motor vehicle, he was in fact using one of his hands to...