People v Condon

[*1] People v Condon 2008 NY Slip Op 50615(U) [19 Misc 3d 1109(A)] Decided on March 26, 2008 Justice Court of Village of Hastings-on-Hudson, Westchester County DeVita, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 10, 2008; it will not be published in the printed Official Reports.

Decided on March 26, 2008
Justice Court of Village of Hastings-on-Hudson, Westchester County

People of the State of New York

against

James Condon, Defendant.



LS 485903 5

James R. DeVita, J.

Defendant James Condon was issued three simplified traffic informations on Tuesday, November 6, 2007: 1) LS 485903 5 (hereinafter referred to as "Ticket 1"), charging a violation of § 375(2)(a)(3) of the Vehicle and Traffic Law with respect to a vehicle described as a "1989 Ford," (apparently a pickup truck); the alleged violation being described as "TAIL LIGHT NOT WORKING (Drivers Side)"; 2) LS 485904 6 (hereinafter referred to as "Ticket 2"), charging a violation of § 375(2)(a)(3) of the Vehicle and Traffic law with respect to a vehicle described as "wood chipper;" the alleged violation described as "BOTH TAIL LIGHTS NOT WORKING"; and 3) LS 485905 0 (hereinafter referred to as "Ticket 3"), also charging a violation of § 375(2)(a)(3) of the Vehicle and Traffic law with respect to the vehicle described as "wood chipper;" the alleged violation for this ticket being described as "NO BRAKE LIGHTS." For the reasons stated within, the Court finds Mr. Condon not guilty with respect to Ticket 1 and Ticket 2, but guilty with respect to Ticket 3. The Court rendered its decision at the conclusion of the trial, but issues this Opinion and Order in order to explain the basis for its decision and to facilitate an appeal that Mr. Condon has stated he wishes to pursue.

The case came on for trial on January 23, 2008. Immediately prior to the commencement of trial, the People moved pursuant to CPL § 100.45 [3] to amend Ticket 2 and Ticket 3 to change the section of the Vehicle and Traffic Law allegedly violated from § 375 (2)(a)(3) to § 376 (1)(a) on the ground that the "wood chipper" described in those two tickets was not a "motor vehicle" covered by § 375, but rather a "vehicle" covered by § 376. After initially reserving decision on that application in order to hear evidence relating to Ticket 1, the Court granted the People's application when the defendant agreed to proceed on the amended tickets rather than requesting an adjournment.

The People called as their only witness Hastings Police Officer Major, who testified that on the late afternoon of November 6, 2007, he observed a white Ford pickup truck towing a wheel mounted "wood chipper," driven by Mr. Condon, traveling North on Broadway just South of the intersection with Tompkins Avenue in the Village of Hastings on Hudson. According to Officer Major, he observed the truck make a right turn onto Tompkins. Officer Major also stated that the wood chipper, which was being towed behind the truck, did not have visible turning signals or brake lights, and that vehicles following behind the truck and attached wood chipper [*2]on Broadway were forced to apply their brakes suddenly when the truck turned because there was no visible signal on the wood chipper to indicate either the slowing down or the intention to turn. Officer Major followed the truck, pulled Mr. Condon over and issued the three tickets previously described. In addition to Officer Major's testimony, the People introduced into evidence a video tape depicting the Mr. Condon's vehicles from the rear, made by a camera mounted on Officer's Major's police car that was activated automatically when Officer Major turned his police lights to pull Mr. Condon over on Tompkins Avenue.

With respect to Ticket 1, Officer Major testified that as he approached Mr. Condon's vehicles from the rear, he saw that one of the tail lights on the right side of the pickup truck was not lighted. That testimony is inconsistent with the handwritten notation on Ticket 1 (which Officer Major identified as his own handwriting) which said "(Drivers [sic] Side)", apparently to indicate that the non-working "tail light" was on the left, or driver's, side of the pickup truck. In any event, and more importantly, Officer Major also testified that although one of the lights on the right rear side was inoperative, there were other lights on that side that were lit so that there were lit lights on either side of the rear of the truck. Section 375 (2)(a)(3), in relevant part, requires that a motor vehicle "shall display" "at least two lighted lamps on the rear, one on each side . . . ." According to Officer Major's own testimony, Mr. Condon's truck met this requirement, notwithstanding the fact that one of the several tail lights, on whichever side, appears to have been inoperative. Thus, the Court found Mr. Condon not guilty with respect to Ticket 1.

Moreover, the requirement for lit "tail lights" for motor vehicles contained in §375(2)(a)(3) applies only when the windshield wipers are in use or "during the period from one-half hour after sunset to one-half hour before sunrise." There was no evidence of any "rain, sleet, snow, hail or other unfavorable atmospheric condition" requiring the use of windshield wipers, and all three tickets were issued at 5:09 p.m. The People offered no evidence on the issue of what time sunset occurred on November 6, 2007, even after the Court pointed out the absence of evidence on that point. Thus, the People failed to prove that the "tail light" requirement was even applicable at the time of the alleged infraction.

For the same reason, the Court found Mr. Condon not guilty of the offense charged in Ticket 2, charging "BOTH TAIL LIGHTS NOT WORKING" on the "wood chipper." Even assuming the "wood chipper" meets the statutory definition of a "vehicle" (an issue to be discussed within as it relates to Ticket 3), like §375(2)(a)(3), § 376 (1)(a) also requires a vehicle to be equipped with "lamps" (which the Court understands to mean "tail lights") only "during the period from on-half hour after sunset to one-half hour before sunrise." Thus, without proof of when sunset occurred on November 6, 2007, the People failed to carry their burden of proof with respect to Ticket 2.

Mr. Condon testified on his own behalf, but did not dispute the essential facts as described by Officer Major. Thus, with respect to Ticket 3, he does not contend that there were operating "brake lights" on his "wood chipper." Rather, he presented a legal defense on the ground that his "wood chipper" is not a "vehicle" as defined in the Vehicle and Traffic Law, and is, therefore, not required to have "brake lights" by either § 375 (2)(a)(3) or § 376(1) (a). Thus, [*3]he contends that he is not guilty under Ticket 3.

The Court finds, however, that the "wood chipper" is, in fact, a "vehicle." Section 159 of the Vehicle and Traffic law defines the term vehicle as follows: "Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks." The "wood chipper" at issue here is used by Mr. Condon in his tree trimming business, is mounted on four wheels and is towed on the streets and highways behind his truck. The Court was able to view the video tape of the truck and attached "wood chipper" in motion. Whether the "wood chipper" is viewed as a single "device" with wheels, or as a machine mounted on a separate trailer for towing to and from job sites, the four wheeled "device" is clearly capable of transporting property on a street or highway. Indeed, that is its very purpose and use to which Mr. Condon put it. Officer Major's testimony regarding his observation of Mr. Condon's right turn onto Tompkins Avenue, and the difficulty caused to following traffic by the absence of operating brake lights or turn signals on the "wood chipper," underscores the need for such turn signals and brake lights on a "vehicle" in tow like this one. Thus, the prohibition in § 376(1) (a) against "operat[ing] a vehicle . . . on any public highway or street in this state at any time during day or night unless such vehicle is equipped with signaling devices and reflectors . . . in good working condition . . . ."applied in this case. Since it is conceded that the "wood chipper" did not have signals in good working condition, the defendant is guilty of the offense charged in Ticket 3, as amended. The Court imposed a fine of $100, and a mandatory surcharge of $35, which the defendant has since paid.

Dated: Hastings-on-Hudson, New York

March 26, 2008

SO ORDERED

_________________________

James R. DeVita

Acting Village Justice