PRETRIAL PROCEDURE

Defendant made oral motions to dismiss, which were followed up by written motions alleging that the Defendant did not actually operate his motor vehicle or, at the very least, did not intend to operate his motor vehicle. In either event, the Defendant was not operating his motor vehicle on a public highway. Although no affidavit is submitted by defense counsel allocating the factual circumstances upon which the Motion to Dismiss is based, in the oral motion, the facts allocated to this court, which are assumed, but not found controlling are as follows:

FACTS

Defendant, on March 14, 2004, parked his car at the Stop and Go gas station at 4004 Lake Avenue, Town of Lockport, New York. He was then transported by other persons to a party where he consumed alcoholic beverages and returned in the early hours of the morning to the Stop and Go gas station. Defendant realized he was intoxicated and had no intent of driving his motor vehicle, but called his brother to come and get him. While waiting for his brother, the Defendant did start the motor vehicle to keep himself warm. The Niagara County Sheriff, on routine patrol, saw Defendant at the gas station at 4:54 a.m. Deputy Ander arrested Defendant for driving while intoxicated after obtaining a Breathalyzer test reading of .13%. Defendant admitted to the Deputy that he had been drinking approximately 10 drinks, including 8 beers and 2 vodkas at the Portage Pub. He indicated he did not drive, but got dropped off at the gas station.

[*2]PUBLIC HIGHWAY

The court must first determine whether or not the property at the Stop and Go Gas Station is a public highway. Defense quotes §1227(1) of the V & T Law and People v. Wormuth, 108. Misc 2d 652 (Saratoga County Court, 1981) to indicate that a parking lot does not constitute a public highway. The Court finds these cases unpersuasive in light of the Second Department's case of People v. Murphy, 169 Misc 2d 357, 649 NYS2d 962, which holds §1192 of the Vehicle and Traffic Law is applicable to private parking lots. §1192(7) of the Vehicle and Traffic law specifically provides that the provisions of the driving while intoxicated statute are applicable in a parking lot. While Murphy [*3]applied to the Vehicle and Traffic Law to private property, even in lieu of any local ordinance allowing the same, this Court finds §1192(7) requires 1192 to be applicable in parking lots, which, for the purpose of that Section, defines parking lot to mean "any area or areas of private property, including a driveway, near or continuous to or provided in connection with premises and used as a means as access to and egress from a public highway to such premises and having a capacity for parking of four or more motor vehicles." Defense has submitted an Engineer's Report of the Stop and Go Gas Station, which shows there is no parking lot striping to create individual parking spaces of four or more designated areas. The Engineer's conclusion is that if there is no paint, there are no parking spaces. While that may be true for zoning purposes, §1192(7) indicates only a necessity of "having the capacity for parking of four or more cars." In review of the Engineering Report, taking north, south, east and west photographic view show at least three cars parked in the area when the engineer visited the premises on March 24, 2004. The Court finds that the capacity to have four or more cars located in an area does not mean, nor does the statute require individual parking spaces marked by paint conforming with any given building code. The statute is broader than that and it is a question of fact for the People to prove at trial the capacity of the Stop and Go gas station. Thus, the Court will deny defense motion, as a matter of law, that the Stop and Go gas station paved property is not a public highway.

INTENT TO OPERATE MOTOR VEHICLE

Defense indicates that Defendant was not actually operating a motor vehicle or at least he did not intend to operate the same. Citing Prudhomme v. Hults, 27 AD2d 234 (3rd Dept. 1967), which is an Article 78 brought on by Prudhomme against the Commissioner of Motor Vehicles, Hults, (after Prudhomme refused to take a breathalyzer test), for the proposition of operation. There the Defendant was sleeping in his car and was awakened by a police officer. The underlying issue there for the Court to decide was whether or not there was a valid predicate for the police to request the Petitioner take a chemical test which revolved around whether or not there was probable cause for the police officer to arrest. The Court found that there was probable cause and abundant evidence of the Petitioner's intoxication. The Court concluded the Defendant operated the automobile in the presence of the arresting officer and his arrest was legal and constituted any valid subsequent procedures taken by the Commissioner of Motor Vehicles. Prudhomme, citing an old 1924 Erie County Court Case of People v. Domagala, 123 Misc. 757 concludes that operation commences "when the individual began to manipulate the machinery of the motor vehicle for the purposes of putting an automobile into motion". The Court found that 43 years later the petitioner who operated the car was within the meaning of the statute, particularly on the facts of that case wherein Prudhomme was sleeping in the automobile and had its motor running and he was slumped over the wheel. This Court holds on the authority of People v. Alamo, 34 NY2d 453, 358 NYS2d 375, that for purposes of offenses for driving while intoxicated under the Vehicle and Traffic Law, the operation of a vehicle is established on proof that Defendant was merely behind the wheel with the engine running, without need for proof that the Defendant was observed driving the car. The Court of Appeals in Alamo has said:

"An established line of authority in New York and elsewhere holds that for purposes of offenses for driving while intoxicated under the Vehicle and Traffic Law, Consol. Laws, c. 71, operation of the vehicle is established on proof that the defendant was merely behind the wheel and [*4]the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion. (People v. Marriott, 37 AD2d 868, 325 NYS2d 177; Matter of Tomasello v. Tofany, 32 AD2d 962, 303 NYS2d 22, stay Tofany, 32 AD2d 962, 303 NYS2d 22, stay den. 25 NY2d 647, mot. for lv. to app. den. 25 NY2d 742, 305 NYS2d 1026, 252 NE2d 863; Matter of Prudhomme v. Hults, 27 AD2d 234, 278 *** 380 NYS2d 67 **450 and cases cited therein; People v. Ceschini, 63 Misc 2d 15, 310 NYS2d 581; Ann., 47 A.L.R.2d 570, Driving While Drunk, and suppl.) Quoted with approval in Prudhomme was the language from People v. Domagala (123 Misc. *459 757, 758, 206 N.Y.S. 288) that an individual began to violate the law (against operating while intoxicated) the instant he began to manipulate the machinery of the motor for the purpose of putting the automobile into motion', even though he did not succeed in moving it, (27 AD2d, at p. 236, 278 NYS2d, at p. 69) Also quoted approvingly was the language from Commonwealth v. Uski, 263 Mass. 22, 24, 160 N.E. 305: "A person operates a motor vehicle within the meaning of (the statute) when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.' (27 AD2d, at p. 237, 278 NYS2d, at p. 70.)"

Thus, operation is a much broader concept than driving a motor vehicle.

EXCEPTION TO OPERATION

The defense does cite People v. Dymond 158 Misc 2d 677, wherein the Greene County Court attempted to decide what "operation" was as a matter of law. The Dymond case is a post indictment, where the Court dismissed the indictment with leave to re-present because there was conflicting evidence before the Grand Jury as to Defendant's intent. The Greene County Court found that intent was a necessary component of operation. Because the Grand Jury had not been so apprised by the Assistant District Attorney handling the matter, the indictment was dismissed and re-presented because of erroneous instructions. This Court has also found, People v. DeSantis, which is a three person panel decision of the Second Judicial Department of the Ninth and Tenth District Appellate Term decided May 21, 1990, and was unrecorded, but reported in the New York Law Journal, Volume 203, No. 97, in issue May 21, 1990, NYLJ, Page 32, Column 4. In that case, after a Hearing, the Trial Court dismissed the charges on the following facts: Defendant, DeSantis, had returned to his car after taking a train from New York City and after having some dinner and drinks with "a bunch of the guys". Upon his return by train, he knew he was unable to drive. He stated that he intended to find alternate means of returning home and started a motor vehicle solely to turn on the heater in an effort to keep warm. Thereafter, he fell asleep. At the conclusion of the Hearing the Trial Court credited testimony of the Defendant and dismissed the simplified traffic information lodged against him. The People took an appeal to the Appellate Term, which affirmed the dismissal in a procedure posture because there is no right of the People to appeal from a Decision to Dismiss. This Court is also mindful of People v. O'Connor, 159 Misc 2d 1072, 607 NYS2d 856, a Nassau County Decision wherein Defendant was behind the steering wheel with the engine running, but the vehicle did not move. The Court there found the Defendant was seated behind the wheel, with the motor running, only for the purpose of helping the owner start the vehicle and without any intention of driving the vehicle. The O'Connor court cites many cases regarding the operation of the motor vehicle. Although the O'Connor Court finds the operation to have a broader [*5]meaning than driving, it still found the Defendant not guilty. This Court will not follow DeSantis as the appeal was dismissed on procedural grounds. This Court respectfully disagrees with O'Connor Court.

This Court also has reviewed People v. Khan, 168 Misc 2d 192, 638 NYS2d 858, a Kings County City of New York case where the Court found that a driver legally parked who starts the engine of a car without intention to set the car in motion did not operate the motor vehicle. The Khan Court sets forth a lengthy and excellent review of the various cases, all of which this Court has noted and read. However, the Khan Decision was reversed in 182 Misc 2d 83, 697 NYS2d 457 on procedural basis. There the Second Department found that although the lower court's extensive analysis of most of the cases in the area was excellent, it appeared that the analysis used by the Trial Court was more proper for a Decision after trial instead of determination in a pre-trial posture. This Court agrees with that analysis and, therefore, denies the second part, as a matter of law, of Defendant's Motion defining operation. Again, it is a question of fact for the People to show at Trial that operation is established by proof that the defendant was behind the wheel of the automobile with the engine running. (See Alamo, supra )

The Court has reviewed the rest of the Defendant's material requests and finds that much of them are boiler plated and, quite frankly, not applicable to the DWI prosecution. This Court will grant leave to the defense to make a sub-sequential motion should the People not narrow the issues once the People have replied to the discovery demands. This constitutes the Decision of the Court.

Dated: June 14, 2004

_______________________________

Leonard G. Tilney, Jr.

Lockport Town Justice