[*1]
People v Fortini
2015 NY Slip Op 50661(U) [47 Misc 3d 1218(A)]
Decided on May 5, 2015
City Court Of Peekskill
Johnson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through May 12, 2015; it will not be published in the printed Official Reports.


Decided on May 5, 2015
City Court of Peekskill


PEOPLE OF THE STATE OF NEW YORK,

against

RAINA L. FORTINI, Defendant.




1203-14



Raina L. Fortini
7 North James Street
Peekskill, New York 10566

Ingrid O'Sullivan, Esq.
City Hall—Law Department
840 Main Street
Peekskill, New York 10566


Reginald J. Johnson, J.

A non-jury trial was held on the above-captioned matter on April 24, 2015.

Defendant, RAINA L. FORTINI, was charged with operating a motor vehicle on a public highway while using a mobile phone in violation of §1225-c(2)(a) of the Vehicle and Traffic Law of the State of New York ("VTL").

    The People were represented by City Prosecutor Ingrid O'Sullivan and the Defendant was pro se.

    Peekskill Police Officer Nicholas Franco (Shield No. 44) (P.O. Franco) testified for the People.

Trial Testimony

P.O. Franco's Testimony

P.O. Franco testified that he has been employed by the Peekskill City Police Department (Peekskill PD) as a patrol officer since 2003. Prior to joining the Peekskill PD, he received training at the New York State Academy for 6 months; he testified that he received training in the use of radars, data masters, hostage negotiations, and DARE.[FN1]

 

P.O. Franco testified that part of his duties as a patrolman is to enforce the penal law, traffic law and local code through visual observations and investigations. He stated that his [*2]duties 5 days per week (since 2003) include observing, stopping and issuing uniform traffic tickets (UTTs) to motorists for violations of the traffic laws.

P.O. Franco further testified that he was on duty on April 2, 2014, working the 4:00 pm to 8:00 pm tour, and assigned to the sector/zone that encompassed the geographical location of Highland Ave and Constant Ave in the City of Peekskill. At approximately 5:30 p.m., P.O. Franco was parked in a marked vehicle on Cortlandt Street close to Highland Ave when he observed the driver of a black Honda, using a cell phone, while the vehicle was in motion, by extending it toward or outside the driver's side window as if the driver was using the cell phone's camera feature in order to record something. P.O. Franco followed the vehicle and stopped it at the vicinity of Highland and Constant Avenues. P.O. Franco identified the driver of the black Honda in court as the Defendant. After requesting and obtaining the Defendant's driver's license and registration, P.O. Franco issued the Defendant a UTT (People Exh. "1" in evid.) charging her with operating a motor vehicle on a pubic highway while using a cell phone in violation of V & T 1225-c(2)(a).

Defendant's Testimony

    The Defendant testified at length to highly irrelevant and personal matters that contained conspiracy theories and invective. Notwithstanding the aforesaid testimony, the Defendant was able to testify that she was holding her cell phone toward or outside of her driver's side window in order to take videos/photos and that she was not using her cell phone to make or receive calls at the time she was observed by P.O. Franco. Defendant initially testified that her car was in motion at the time she was holding her cell phone and taking videos/photos and then she later testified that her car was not in motion when she was taking videos/photos with her cell phone.

Discussion and Legal Analysis

    At a traffic trial, the People bear the burden of proving the Defendant's commission of the traffic infraction beyond a reasonable doubt. See, People v. Canham, 23 Misc 2d 441, 201 N.Y.S.2d 386 (Orleans County Ct. 1960); People v. Moore, 20 Misc 2d 48, 191 N.Y.S.2d 283 (Yates County Ct. 1959). However, a traffic infraction is not a crime and the punishment imposed therefor is not deemed for any purpose a criminal punishment. See, V & T §155.

It is a "rule of the road" in New York that drivers are prohibited from using hand-held cell phones while driving upon a public highway. See, V & T §1225-c(2)(a); James v. Town of Babylon, 40 Misc 3d 8, 968 N.Y.S.2d 314 (App. Term 9th & 10th Jud. Dists. 2013).

    V & T Law §1225-c(2)(a) ("Use of mobile telephones") states, in pertinent part, ... 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. V & T Law §1225-c(2)(b) states, in pertinent part,
An operator of any 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 this section .

V & T Law §1225-c(1)(f) defines "engaging in a call" as... talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone.

V & T Law §1225-d(1) ("Use of portable electronic devices") states, in pertinent part, no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.

V & T Law §1225-d(2)(a) ("Portable electronic device") defines a "portable electronic device" as follows:

...any hand-held mobile telephone, as defined by subdivision one of section twelve hundred twenty-five-c of this article, personal digital assistant (PDA), handheld device with mobile data access, laptop computer, pager, broadband personal communication device, two-way messaging device, electronic game, or portable computing device, or any other electronic device when used to input, write, send, receive, or read text for present or future communication.

V & T Law §1225-d(2)(b) defines "Using" as... holding a portable electronic device while viewing, taking or transmitting images, playing games, or, for the purpose of present or future communication: performing a command or request to access a world wide web page, composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving email, text messages, instant messages, or other electronic data.

"Section 1225-c(2) of the Vehicle and Traffic Law prohibits a driver's use of a cell phone while his car is in motion, but only if the cell phone is near the driver's ear." See, People v. Abdul-Akim, 27 Misc 3d 1220(A), 2010 WL 1856007 at *5 (NY Sup. Ct., Kings County) (emphasis added).

In the Matter of Mark D. Smilow, 95 AD3d 1023 (2d Dept. 2012), the Second Department held that the un-rebutted testimony of the police officer that he observed the defendant operating a motor vehicle while holding a cell phone three to five inches from his ear created a presumption that he was using the cell phone in violation of V & T §1225-c. Id. at 1024.

    In Village of Floral Park v. Cusmai, NYLJ, 1/5/2004, p. 20., col. 1., the Court held that the testimony of the police officer that the he observed the defendant operating a motor vehicle while holding a cell phone six inches from his ear created a rebuttable presumption that defendant V & T §1225-c, although the defendant was later able to successfully rebut the presumption and obtain a dismissal. See, V & T §1225-c(2)(b) (statute creates a rebuttable presumption of use if a driver is operating a motor vehicle while holding phone to or in the immediate proximity of his or her ear).

    On November 1, 2009, the New York Legislature enacted V & T §1225-d(1), which prohibits all drivers from "using" a "portable electronic device" while operating a motor vehicle on a public highway. See, People v. A.N., 44 Misc 3d 269, 985 N.Y.S.2d 835 (Rye City Ct. 2014); see generally V & T §1225-d. A "portable electronic device" has been defined as any "hand-held mobile telephone." Id. §1225-d(2)(a). "Using" a portable electronic device has been defined as "holding a portable electronic device while viewing, taking or transmitting [*3]images ." Id. §1225-d(2)(b). Further, a "person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle is presumed to be using such device." Id. §1225-d(4). Of critical importance is that V & T §1225-c(1)(f) states that "engaging in a call" "shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone."

In the case at bar, the People charged the Defendant with operating a motor vehicle while using a cell phone in violation of V & T §1225-c(2)(a). See, People's Exh. "1". The People alleged that the Defendant was "engaging in a call" while operating her motor vehicle. Interestingly, the testimonies of the Defendant and P.O. Franco are in harmony on the most critical issue of fact in this case—to wit, that the Defendant had her cell phone extended toward or outside of the driver's side window as if she was videotaping or taking pictures at the time her vehicle was in motion.

Since the Defendant's and P.O. Franco's testimony clearly establish that the Defendant was holding her cell phone while taking videos and/or pictures at the time her vehicle was in motion, the proper charge against her would have been a violation of V & T §1225-d(1), not V & T §1225-c(2)(a). If Defendant was taking videos and/or pictures while her vehicle was in motion, then she was not "engaging in a call" within the meaning of V & T §1225-c(1)(f), which states that a driver is not "engaging in a call" when said driver is "holding a mobile telephone to activate, deactivate or initiate a function of such telephone." This Court holds that holding a mobile phone to take videos and/or pictures while operating a motor vehicle constitutes "activat[ing] or initiat[ing] a function of such telephone," not "engaging in a call" within the purview of V & T §1225-c (2)(a). See, People v. A.N., supra. In short, the trial testimony clearly indicated that the Defendant was charged under the wrong section of the vehicle and traffic law warranting a dismissal.

Based on the foregoing, it is

ORDERED, that the UTT charging the Defendant with violating V & T V & T §1225-c(2)(a) is dismissed.[FN2]

This constitutes the Decision and Order of the Court.

Enter,
______________________________

Honorable Reginald J. Johnson
City Court Judge

Peekskill, New York



DATED: May 5, 2015

Footnotes


Footnote 1:DARE is the acronym for Drug Abuse Resistance Education.

Footnote 2:The Court considered People's Exh. "1" (UTT charging the Defendant with a violation of V & T §1225-c(2)[a]) and the trial testimony in rendering the decision in this case.