People v Penepent
Annotate this CaseDecided on July 6, 2006
Ithaca City Court
People of the State of New York,
against
David R. Penepent, Defendant.
T06-00481
Judith A. Rossiter, J.
The defendant, David Penepent, is charged with one count of Speed in Zone, an alleged violation of VTL §1180(d). The Court held a non-jury trial in this matter on April 27, 2006, and based on the evidence presented at that time, finds and concludes as follows.
Funeral Director David Penepent was traveling eastbound on State Street within the City of Ithaca when he was stopped and ticketed for driving 43 M.P.H. in a 30 M.P.H. zone. His speed was measured by radar operated by Officer Thomas Yetzer of the Ithaca Police Department. The ticket was issued to Mr. Penepent by Officer Amanda Mazzaraco of the Ithaca Police Department. Mr. Penepent is not contesting the speed he was traveling or the speed limit posted in that area. He is, however, claiming that the police were in violation of law for stopping him because on the date and at the time on the ticket he was transporting a dead human body in a hearse, in accordance with §13.2 of the sanitary code and §4145 of the public health law with the required transit permit. Mr. Penepent explained that he was driving from Ithaca to a funeral home in Pennsylvania to deliver the body for final burial. In what is clearly a case of first impression, the defendant has raised two defenses. First, he claims that he was not intentionally speeding, but rather found it necessary to accelerate up hill on State Street because of the size of the vehicle, which was further weighed down by the 250 lb.-body contained therein. Second, Mr. Penepent claims that the police officer was in violation of law in stopping him because New York Public Health Law §4220 forbids a person who, without authority of law, obstructs or detains any persons engaged in carrying or accompanying a dead body of a human being to a place of burial (NY Pub. Health Law §4220).
As to the first issue, speed limits apply to all vehicles on the road, and there are no exceptions for vehicles of greater size or mass. If there were, there would be one speed limit for trucks and another for cars. Furthermore, public safety concerns would dictate that, if anything, larger vehicles should proceed at a slower pace than smaller vehicles, so the defendant's claim that the size of his vehicle required him to accelerate more uphill is without merit, both as a matter of law and as a matter of public policy.
Turning to the more interesting defense raised under Public Health Law §4220, the Court has spent considerable time attempting to determine the original intent of the law as it now stands. This section was added by the laws of 1965, chapter 1031, section 180. However, in a review of that chapter and section, obtained from the New York State archives, it is clear that this provision was merely transferred from the penal law to the public health law as part of the [*2]general revision of New York State Penal Law undertaken by the Bartlett Commission (New York L., 1965, c. 1031). Prior to 1965, this provision was part of the former penal code designated as §315, which was added to the old New York State Penal Law in 1881 (L. 1881, c. 676). Given that the original statute was passed in 1881, and automobiles were not built until 1886, and not introduced in the United States until 1908, this provision was not passed by the state legislature with motor vehicle traffic the source of concern. The Court notes that a vehicle and traffic case the Court has located regarding funeral processions, the case of Vinci v. Charney (192 Misc 302), was decided in 1948. In that case, the court denied defendant's motion to overturn a jury verdict in a personal injury action in which a driver proceeded into an intersection on a green light and was struck by another driver who was part of a funeral procession. The court held that, although municipal code of the City of Rome, New York, provided that cars passing in a funeral procession have the right of way, regardless of signal lights in operation at the time, in the absence of any police officer directing traffic at the intersection, another driver facing a green light may proceed, despite the presence of a funeral procession. The court cited a similar case based on a City of Buffalo ordinance in which the Court held that vehicles in a procession should proceed with permission or by order of a police officer only (see Merkling v. Ford Motor Co., 251 AD 89). New York Public Health Law §4220, then known as Penal Law §315, was not cited in either case.
It is clear that New York State Law and Public Policy dictate that the quiet of the grave and the repose of the dead are not to be disturbed except for good and substantial reasons. To that end, public health law does prohibit obstruction or detention of persons engaged in carrying or accompanying the dead body of a human being to a place of burial (see 18 NY Georgia UR. 2d Cemetaries and Dead bodies, §99). Although, as indicated, the New York State Legislature's initial intent in passing what is now Public Health Law §4220 is not clear, in recent time, the U.S. Congress has taken up a measure prohibiting protests at military funerals, after a Kansas church group staged protests and disrupted military funerals around the country (Associated Press, May 25, 2006). This Court is without doubt that former Penal Code §315, now Public Health Law §4220, was not enacted to permit funeral directors to transport bodies at increased speed, whether by horse and buggy or by a more modern conveyance. In any event, the law, as currently enacted, clearly states that the only person who can be charged under this statute with obstructing or detaining a person engaged in carrying a dead body to a place of burial is one who is acting, "without authority of law". In this case, Mr. Penepent's vehicle was stopped by a police officer, a person acting with authority of law, so Public Health Law §4220 would not apply. It is clear from a review of the Vinci and Merkling cases cited above, even when there are local statutes authorizing funeral directors or other motorists to proceed against posted traffic control devices, such movement must be made in accordance with the order or direction of police officers. Accordingly, this Court finds that Public Health Law §4220 is not a defense to speeding by a funeral director transporting a dead body to another funeral home, especially when the hearse was not part of a funeral procession being directed by a police officer.
Given that the prosecutor and defendant stipulated that the speed as measured by radar was 43 M.P.H. and the speed limit on East State Street within the City of Ithaca is 30 M.P.H., the Court finds, based on the foregoing, that there is proof beyond a reasonable doubt that on January 19, 2006, at approximately 10:39 A.M., the defendant operated a motor vehicle in excess of the [*3]posted speed limit, and the Court hereby finds the defendant guilty of a violation of VTL §1180(d), driving 43 in a 30 M.P.H. zone. The Court hereby imposes the mandatory fine of $90.00, together with the mandatory surcharge of $50.00, the total of $140.00 to be paid by cash, money order, certified check, Visa or Mastercard on or by August 11, 2006.
This constitutes the Decision and Judgment of the Court entered upon notice to both parties. A Notice of Appeal, if any, must be filed within thirty (30) days of this decision.
Dated: July 6, 2006
_________________________________
JUDITH A. ROSSITER
Ithaca City Court Judge
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