[*1]
People v Gay
2008 NY Slip Op 50025(U) [18 Misc 3d 1114(A)]
Decided on January 8, 2008
Just Ct Of Town Of Webster, Monroe County
DiSalvo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 8, 2008
Just Ct of Town of Webster, Monroe County


People of the State of New York

against

D. Dyson Gay, Defendant.




07100477



Teodoro Siguenza, Esq. Assistant District Attorney

D. Dyson Gay, Esq., for the Defendant

Thomas J. DiSalvo, J.

The defendant was charged with using a mobile telephone while operating a motor vehicle on a public highway in violation of VTL 1225-c(2)(a) on October 22, 2007.The defendant was given a "Simplified Information/Certificate Concerning Violation of Law Relating to Vehicles", more commonly known as an "e-ticket". The ticket was originally returnable in Webster Justice Court on November 13, 2007. However, the defendant appeared in court for the first time on December 5, 2007, where he was arraigned on the charge. The case was adjourned for the submission of written motions. Written motions were submitted by the defendant on or about January 2, 2008. The motions demanded that the charge be dismissed.

Issues Presented.

Was the ticket issued to the defendant defective as violating VTL 207 and 15 NYCRR 91.5? Is VTL 1225-c(2)(a) inapplicable to a "hands free mobile phone" as owned by the defendant?

Legal Analysis.

A. Validity of "E-Ticket".VTL 207(a) authorizes the Commissioner of Motor vehicles to prescribe the form of a uniform traffic ticket. The defendant cites as controlling 15 NYCRR 91.5, which sets out the specifications of Uniform Traffic Tickets issued for traffic violations. The ticket issued to the defendant is commonly referred to as an "e-ticket", which consisted an 8 ½ inch by 10 inch white document issued by the officer on the scene by a [*2]computer in the police car. Said ticket does not comply with the provisions of 15 NYCRR 91.5. However, 15 NYCRR 91.21(a), which authorizes "Electronic Ticketing", states

"In lieu of issuing uniform traffic tickets to enforcement agencies, as provided

in section 91.16 of the Part, the commissioner may authorize law enforcement

agencies to print any or all parts of the ticket packet and/or to transfer the

information contained thereon electronically. Such printing and/or transfer of information shall be authorized in all areas of the State of New York."


This provision was effective December 24, 2002, well prior to the issuance of the ticket in question. An "e-ticket" is required to "... conform substantially to a paper ticket approved for use in the same geographic area of the State ...." 15 NYCRR 91.21( c). See also People v. Mena (2007) WL 4355455 (NY Dist. Ct.), 2007 NY Slip Op 52366(U). There is no allegation by the defendant that the ticket he received failed to conform with CPL 100.10(2)(a) or CPL 100.25.

However, a review of the e-ticket in question, shows compliance with those two provisions and the applicable regulations set out in 15 NYCRR 91 et seq. As a result, the defendant's allegation that the ticket was misleading is without merit.

B. Inapplicability of VTL 1225-c(2)(a) to a hands -free mobile telephone.

VTL 1225-c(2)(a) states "Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion." The key is not the type of mobile phone in question, but whether or not the operator of a motor vehicle was "using" a mobile home as defined by VTL 1225-c(1)( c) and whether the operator is said to " engage in a call'" as defined by VTL 1225-c(1)(f). The fact that defendant's phone qualifies as a " Hands-free mobile telephone'" as defined by VTL 1225-c(1)(e), does not permit the operator of a motor vehicle on a public highway to operate a "hands-free mobile phone" unless the "... user engages in a call without the use of either hand...." By definition, as set out in 1225-c(1)(e), one must operate such a phone "without the use of either hand". Thus defendant's reliance on the exemption as set out in VTL 1225-c(3) is misplaced. Whether or not the defendant was properly using his hands-free mobile phone or whether he was using it at all is a question of fact for trial.[FN1] Therefore, the defendant's motion to dismiss the charge based solely on the fact that the defendant owned a "hands-free mobile phone" is also without merit.

Conclusion. [*3]

The motions of defendant to dismiss the charge of Operating a Motor Vehicle on a public highway while improperly using a mobile phone, as prohibited by VTL 1225-c(2)(a), based on the concept that an "e-ticket" is defective, as not authorized by statute or regulation, and/or that a "hands-free mobile telephone"is exempt from application VTL 1225-c(2)(a), regardless of how it is used, are hereby denied. The case is adjourned to January 16, 2008 at 1:00 P.M. for further disposition. This constitutes the decision and order of this Court.

Dated:Webster, New York

January 8, 2008

__________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice

Footnotes


Footnote 1:However, VTL 1225-c(2)(b) states that "An 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 engaging in a call within the meaning of the statute. The presumption

established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call."