People v Smith

[*1] People v Smith 2009 NY Slip Op 51431(U) [24 Misc 3d 1212(A)] Decided on July 1, 2009 Ithaca City Ct Rossiter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2009
Ithaca City Ct

The People of the State of New York,

against

Deborah Smith, Defendant.



T08-08638



The Assistant District Attorney was Gary Surdell and the defendant was represented by Seth Peacock of Ithaca.

Judith A. Rossiter, J.

The defendant, Deborah Smith, is charged with Operating a Motor Vehicle While Using a Mobile Phone, an alleged violation of VTL §1225(c)(2)(a) . The Court held a non-jury hearing in this matter, at which the defendant was represented by Attorney Seth Peacock, and the People by Assistant District Attorney Gary Surdell. Based on the evidence presented at that time, the Court finds and concludes as follows:

Officer Anthony Augustine of the Ithaca Police Department testified that on December 13, 2008, at approximately 4:30 P.M, he saw Deborah Smith operating a motor vehicle on Meadow Street within the City of Ithaca. He observed that she had in her hand what appeared to be a mobile phone and that she appeared to be speaking in that phone as she was driving. The officer stopped the vehicle, at which time Ms. Smith stated that she was talking to her son. The officer did not look at the cellphone or any other equipment that Ms. Smith may have been using, Officer Augustine also did not recall the exact location of the stop in question.

Deborah Smith testified that on the date in question she did receive a phone call as she was on Meadow Street, approaching the intersection with West Buffalo Street. Ms. Smith produced

a "blue tooth" that she uses for hands-free communications while driving. A photo of the device was marked and received as Defendant's Exhibit A. Ms. Smith explained that the device depicted in Exhibit A is normally affixed to the visor in her vehicle but on the date in question, when she pressed the button to activate the device, it fell off the visor, and she picked it up briefly. It was at this time that Officer Augustine observed her on Meadow Street with the device in her hand. Counsel for the defense argues in the alternative that the device in question is not itself a cellphone and therefore not covered by the statute. As an alternative, counsel argues that if the Court finds that the "blue tooth" device is a mobile phone, which position the Prosecutor argues, then the driver had it in her hand solely for the purpose of activating the device, which is an action not forbidden by the statute.

Vehicle and Traffic Law §1225-c(2)(a) provides that: "No person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle [*2]is in motion". Subdivision 1 of the statute provides the following definitions: (a) mobile telephone shall mean the device used by subscribers and other users of wireless telephone service to access such service; (c) using shall mean holding a mobile telephone to, or in the immediate proximity of, the user's ear; (f) engage in a call shall mean 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; and (e) hands-free telephone shall mean a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone. The issue in this case appears to be whether the device identified by Ms. Smith and depicted in Defendant's Exhibit A is a mobile telephone, and if so, whether there is sufficient proof that Ms. Smith was engaged in something other than activating the device at the time she was observed by the officer.

This Court previously ruled in the matter or People v. Deep (12 Misc 3d 1137) that a driver who was merely using her phone to attempt a call while stopped at a red light was not guilty of a violation of this statute. That case has been positively cited by People v. Campanaro (19 Misc 3d 1116[a]) inter alia. In contrast, in the matter of People v. Gay (18 Misc 3d 1114[a]), the Justice Court in the Town of Webster in denying a motion to dismiss, held that VTL 1225-C(2)(a) could apply to a hands-free mobile phone. The Court held that: "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 (citation omitted). 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" (id at 1114).

In this instance, the driver, Deborah Smith, although using a so-called hands-free device, holding it in her hand at the time that she was observed by Officer Augustine, because the device had fallen off her visor. There is no question that she was speaking on the telephone at the time of the stop; she admitted as much. Accordingly, although it is possible for a driver to use a hands-free phone device while driving without violating Vehicle and Traffic Law, as currently written, and it is also lawful for a person to activate or deactivate a hand-hell phone, previously deemed by this Court (People v. Deep, supra), it is a violation to drive and speak into a hand-held phone or device at the same time. Given the facts of this particular case, the Court finds that Ms. Smith was holding what is normally referred to as a hands-free device. At the same time, she was conducting a telephone conversation. Given those two facts, this Court concludes that on December 13, 2008, at approximately 4:30 p.m., Ms. Smith was in fact operating a motor vehicle and speaking into a telephonic device, which she was holding in her hand. Accordingly, the Court finds that it is a technical violation of the statute and hereby finds her guilty as charged. This statute does not carry a mandatory fine, and given the lack of aggravating circumstances, the Court sentences the defendant [*3]to a Conditional Discharge, together with the mandatory surcharge of $80.00, to be paid within sixty (60) days of the date of this Decision.

This constitutes the Decision and Judgment of the Court entered upon notice to both parties. Notice of appeal, if any, may be filed within thirty (30) days.

Dated: July 1, 2009

_________________________________

JUDITH A. ROSSITER

Ithaca City Court Judge

cc: Gary Surdell, Assistant District Attorney

Seth Peacock, Attorney at Law