Justice Court of the Town of Webster, Monroe County, March 22, 2019

Thomas A. Corletta, Rochester, for defendant.

Sandra J. Doorley, District Attorney (Heather Manly of counsel), for plaintiff.

The defendant was charged with operating a motor vehicle while using a portable electronic device, in violation of Vehicle and Traffic Law § 1225-d (1),^[FN1] on January 31, 2019. The matter was returnable in court on February 6, 2019. Defense counsel entered a plea of not guilty, and requested a supporting deposition, via his letter of February 4, 2019. He further requested a 30-day adjournment to allow for service of the supporting deposition. However, an electronic supporting deposition was provided to the defendant by New York State Trooper Cody Torpey with the e-ticket, i.e., a simplified traffic information. In any event, the matter was adjourned to March 6, 2019. Prior to said return date defense counsel submitted a motion to dismiss the charge herein. The motion was based on defense counsel's contention that the defendant was charged under the wrong statute, use of portable electronic devices, Vehicle and Traffic Law § 1225-d (1), instead of use of mobile telephones, Vehicle and Traffic Law § 1225-c (2) (a). Prior to the return date, the court notified defense counsel by written decision that his motion was summarily denied because Vehicle and Traffic Law § 1225-d (2) (a) states as follows: " 'Portable electronic device' shall mean any hand-held mobile telephone, as defined by subdivision one of section twelve hundred twenty-five-c of this article . . . ."

However, defense counsel rightly indicated in a letter to the court that he was not given an opportunity for oral argument. He then moved in said letter for a motion to reargue under CPLR 2221 (d) (2). That motion was granted. Said letter further set out his argument that the defendant was charged under the wrong statute. On March 6, 2019, oral argument of the motion was in fact conducted. The court reserved on the motion to reconsider its prior decision and review the written motions submitted to the court by the defendant, any answering motions that may be submitted by the People and the oral argument.{**63 Misc 3d at 699}

Was the defendant who was alleged to be speaking on his cell phone, but charged with using a portable electronic device, charged under the wrong statute?

Use of a portable electronic device, section 1225-d (1), states in pertinent part as follows:

"Except as otherwise provided in this section, no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion; provided, however, that no person shall operate a commercial motor vehicle while using any portable electronic device on a public highway including while temporarily stationary because of traffic, a traffic control device, or other momentary delays."^[FN2]

Defense counsel maintained that the defendant should have been charged under Vehicle and Traffic Law § 1225-c (2) (a), to wit, "Use of mobile telephones," rather than Vehicle and Traffic Law § 1225-d (1), "Use of portable electronic devices."

Use of mobile telephones, Vehicle and Traffic Law § 1225-c (2) (a), states in pertinent part as follows:

"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; provided, however, that no person shall operate a commercial motor vehicle while using a mobile telephone to engage in a call on a public highway including while temporarily stationary because of traffic, a traffic control device, or other momentary delays."

It is certainly true that Vehicle and Traffic Law § 1225-d (2) (a) states in applicable part that a " '[p]ortable electronic device' shall mean any hand-held mobile telephone, as defined by subdivision one of section twelve hundred twenty-five-c of this article . . . ." This would, in and of itself, imply that using a mobile telephone while driving is prohibited by both the said use of portable electronic devices statute as well as the use of mobile telephone statute. The defense contends that such an interpretation would render Vehicle and Traffic Law § 1225-c {**63 Misc 3d at 700}completely superfluous. This court would agree with that premise.

Defense counsel argues that the two statutes discussed herein proscribe two different and distinct types of behavior by the operator of a motor vehicle. The basis for that difference is the particular use prohibited by each of said statutes. The mobile telephone statute addresses the use of a cell phone to engage in a phone call. The portable electronic device statute addresses the use of such devices, among other things, to receive, send or review electronic data, such as sending or receiving a text message.

The definition for "using" a mobile cell phone is set out in Vehicle and Traffic Law § 1225-c (1) (c) as follows:

" 'Using' shall mean (i) holding a mobile telephone to, or in the immediate proximity of, the user's ear; and (ii) with respect to a person operating a commercial motor vehicle, holding a mobile telephone to, or in the immediate proximity of, the user's ear, or dialing or answering a mobile telephone by pressing more than a single button, or reaching for a mobile telephone in a manner that requires such person to maneuver so that he or she is no longer in a seated driving position, restrained by a seat belt that is installed in accordance with section 393.93 of title 49 of the code of federal regulations and adjusted in accordance with the vehicle manufacturer's instructions."

The definition section of the electronic devices statute, Vehicle and Traffic Law § 1225-d (2) (b), states that

" '[u]sing' shall mean 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 e-mail, text messages, instant messages, or other electronic data."

Furthermore it is the contention of defense counsel in his attorney affirmation that "the two statutes are mutually exclusive." In other words, the defense contends that even though a mobile telephone is an electronic device, that would not permit a law enforcement officer to charge a person, using a mobile telephone to make or receive a phone call, under the electronic device statute. Nor could a defendant using his or her cell phone to send a text message be properly charged under the mobile telephone statute.{**63 Misc 3d at 701}

Thus a portable telephone can be a "portable electronic device." But as previously suggested, the two statutes, namely, Vehicle and Traffic Law §§ 1225-c and 1225-d, proscribe two different types of uses by a driver of a motor vehicle. The former proscribes talking on the telephone or any related activity, while the latter proscribes the transfer or receipt of information or the reviewing of any electronic data in any form other than a phone call. It is the use of the device in question that is relevant to charging a defendant with the appropriate statute, not just the type of device that is being used. It is significant, as pointed out by defense counsel, that the portable electronic device statute makes no reference to the making or the receiving of a phone call. In this case the officer stated in his supporting deposition that the "[c]ommercial vehicle is [sic] traveling westbound on State Route 104 with the operator holding cell phone to his right ear." Thus the defendant was alleged to be using the device in question as a telephone to make or receive a phone call. Vehicle and Traffic Law § 1225-c (2) (b) states in pertinent part as follows:

"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; provided, however, that an operator of a commercial motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while such vehicle is temporarily stationary because of traffic, a traffic control device, or other momentary delays is also presumed to be engaging in a call within the meaning of this section . . . ."

Thus the defendant was not properly charged under the electronic device statute, Vehicle and Traffic Law § 1225-d (1). He should have been charged under the use of a mobile telephone statute of Vehicle and Traffic Law § 1225-c (2) (a).

As a result, the court's previous holding, denying the defendant's motion to dismiss the charge herein, is vacated. The motion to dismiss the accusatory instrument herein, a uniform traffic information, which was accompanied by a supporting deposition, charging the defendant with use of a portable{**63 Misc 3d at 702} electronic device, in violation of Vehicle and Traffic Law § 1225-d (1), is hereby granted.