V&TL

Victor M. Metsch is a Senior Litigation/ADR Counsel at Smith, Gambrell & Russell, LLP.  He can be reached at vmetsch@sgrlaw.com.  He maintains a website at www.LegalVictor.net and can be found on Twitter @LegalVictor1.   

 

When is an object in motion not in motion?  The Section 1225-2.c “conundrum” and other VTL issues

 

                        Section 1225-c.2.(a) of the New York Vehicle and Traffic Law, that took effect in late 2001, simply  and clearly states that:

 

“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.”

 

                        Like so many other statutes and areas of the law, the facial simplicity and clarity of the V&TL provision has nevertheless triggered  a “tsunami” of litigation that has dissected, analyzed and examined almost every word and phrase of the statute.

 

                        For example, on March 11, 2013 the New York Law Journal published two decisions by Justice Karen Morris of the Town of Brighton Justice Court that stand as an interesting point of departure for a review of Section 1225-c law. [*]

 

                        In People v. Dakota Winterhawk, N.Y.L.J. 1202591122285, at *1 (decided February 20, 2013):

 

Defendant was charged with using a cell phone while operating a motor vehicle without a hands free device, in violation of Vehicle and Traffic Law, section 1224-c(2a).  According to the testimony, the officer observed the defendant behind the wheel of a 2009 Mitsubishi stopped at a traffic light on the exit ramp of Route 490 at Route 441.  Defendant was holding a cell phone in his right hand up to his ear.  The defendant admitted that he was listening to voicemail while stopped at the light, and stated he put the phone down when the light changed.  Defendant was charged with violating V&TL Section 1225-c(2a).

 

                        According to the Court:

 

By the terms of the statute, the car must be “in motion” for a violation to occur.  Motion is not defined in the statute.  The dictionary explains it as “an act or process of moving.”  Move is defined as “going from one point to another, and changing location.”

 

                        Thus, according to Justice Morris:

 

The issue in this case thus becomes:  Is a vehicle in motion, as that term is used in V&TL Section 1225(2a), when waiting at a red light for the traffic signal to turn green?  I find that the vehicle is in motion at that time, and therefore I find defendant guilty of the charge.

 

                        And the Court concluded that:

 

Cell phones have been the cause of many accidents.  We can all agree that driving is best performed with two hands on the wheel or, at the least, one hand on the wheel and the second at-the-ready and able to respond instantaneously to those unavoidable unpredictable, split second changes in circumstances on the road that require immediate defensive action to avoid an accident.  Such circumstances come in many varieties and can include another car nearby that goes out of control, or a careless or reckless driver whose vehicle comes too close to another, or a child who unexpectedly darts out into the road; or black ice that causes skidding; or one of many other scenarios that instantaneously creates hazardous circumstances.

 

When a call is made while the vehicle is not in motion, the need to be poised to defend against these types of situations is very much diminished, as when the vehicle is parked in a lot, or the motorist pulls the car to the side of the road.

 

In the latter circumstances the vehicle is at a complete stop.  Such situation is significantly different from a motorist who pauses at a red light for a matter of seconds or a minute or two, depending where in the cycle of changing from red to green the light was when the motorist approached.  During that pause in driving, the motorist needs to remain alert to his immediate surroundings to address various possible traffic occurrences.  For example, the driver may find it necessary or prudent to move the vehicle to dodge a reckless driver or an otherwise out-of-control vehicle, or to inch forward as traffic prepares for the upcoming green light, and to drive away expeditiously once the light changes.  Considering the legislative purpose of the statute to protect against accidents caused by distracted, one-hand-down drivers, to say that the car is not in motion while paused at a red light does not comport with the reality of the situation, I therefore find defendant guilty of violating V&TL Law Section 1225-c(2a), using a cell phone while driving without a hands-free device.

 

                        In People v. Andrew Welch, N.Y.L.J. 1202591122251, at *1 (decided March 5, 2013):

 

Defendant was charged with using a cell phone while operating a motor vehicle without a hands free device, in violation of Vehicle and Traffic Law, section 1225-c(2a).  According to the testimony, the officer observed the defendant behind the wheel of a 2010 Audi that drove past the officer on Clinton Avenue in the Town of Brighton.  Per the officer’s testimony, defendant had a cell phone in his hand which he held close to his chin, and was talking into it.

 

                        At trial:

 

The defendant took the stand, admitted that he had the cell phone in his hand and was talking into it, but asserted he was using the phone’s siri feature to activate a call.  Siri is described as an electronic voice-activated “personal assistant”, incorporated into many Apple products including the iPhone which is Apple’s mobile telephone.  By use of voice commands, Siri enables the user to place phone calls, send messages and more.

 

                        Analyzing the statute the Court noted that:

 

Per the terms of the statute, it is illegal to engage in a call while operating a vehicle.  “Engaging in a call” is defined 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&TL Section 1225-c(2)(a).

 

The statute contains a presumption that, “An operator of a 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&TL Section 1225-c(2)(b).  The section further provides, “The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call.”

 

                        And Justice Morris concluded that:

 

The defendant’s testimony, if believed, rebuts the inference that he was engaged in a call and instead establishes that he was activating a call, an action that is not illegal.  Having listened to defendant on the witness stand, I find that he was credible.  The people did not rebut defendant’s testimony.  I therefore find the defendant not guilty.

 

                        The recent Decisions of Justice Morris in Dakota Winterhawk and Andrew Welch triggered additional research with respect to V&TL Section 1225(c).

 

People v. Neville, 190 Misc.2d 432, 737 N.Y.S.2d 251 (Valley Stream Village Court 2002)

 

                        Neville involved a case of first impression in which the defendant “[was] charged with the use of a mobile telephone (cell phone) while parking a motor vehicle on a public street or highway” in violation of V&TL Section 1225-C that took effect on January 1, 2001:

 

In a case that appears to be of first impression, the defendant, Victoria Neville, is charged with the use of a mobile telephone (cell phone) while operating a motor vehicle on public street or highway.  This is a violation under a New York state law that, for purposes of enforcement, took effect December 1, 2001 under VTL 1225-C (Chapter 69, Laws of 2001).  The defendant was served with a simplified traffic infraction on the date of the incident, returnable before this Court.

 

                        The Village Court was called upon to determine whether or not the new VTL provision was unconstitutional under both the New York State and United States constitutions.  The Court, as follows, found that the statute was not void for vagueness or overly broad:

 

The first question of consideration is if the law is so vague or overly broad to the point where a reasonable person of ordinary intelligence would be unable to ascertain what conduct is prohibited.  People v. Shack, 86 N.Y.2d 529, 634 N.Y.S.2d 660, 658 N.E.2d 706 (1995).  Under VTL 1225-C(2)(a) (Ch. 69, Laws of 2001), it is stated in part “no person shall operate a motor vehicle upon a public highway using a mobile telephone to engage in a call while such vehicle is in motion.”  The statute distinguishes between the prohibited “mobile telephones” and the permitted “hands free mobile telephone” where the operator of the motor vehicle can maintain “both hands” on the applicable steering device.  VTL 1225-C(1)e (eff. Nov. 1, 2001).  This language is clear and indisputable to the ordinary citizen.  People v. Bakolas, 59 N.Y.2d 51, 462 N.Y.S.2d 844, 449 N.E.2d 738 (1983) People v. Beecher, 153 Misc.2d 247, 580 N.Y.S.2d 980 (Just. Ct. Nassau Co. 1992).  As an added concern for public knowledge and understanding of the law, from November 1, 2001 to November 30, 2001, the statute limits police action to the issuance of a verbal warning, before the law goes into effect for enforcement on December 1, 2001.  VTL 1225-C(4).  Accordingly, the statute is not void for vagueness or overly broad.

 

                        The Court, as follows, found that the statute was not an invasion of privacy:

 

As previously stated, there is no precedence for a law of this nature.  The closest one can come to a similarity is the enactment of the “Seat Belt Law” (Chapter 365, Laws of 1984), by the New York State Legislature.  Like the current cell phone law, the seat belt law was first in the nation, and also subject to constitutional challenge.  Two courts reviewed the constitutionality of the seat belt law, and each found the statute passed constitutional muster.  People v. Weber, 129 Misc.2d 993, 494 N.Y.S.2d 960 (Town Ct. Erie Co. 1985); Wells v. State of New York, 130 Misc.2d 113, 495 N.Y.S.2d 591 (Sup. Ct. Steuben Co. 1985).  These decisions are valuable in our analysis of the cell phone law.

 

                        The Court, as follows, found that the statute satisfied the State’s interest in protecting health, safety and welfare:

 

It is the opinion of this Court that a law prohibiting the use of hand held cell phones satisfies the state’s interest in protecting the health, safety and welfare of its citizens and a proper use of its police power.  The legislative intent sets forth the need to protect its citizens from the numerous motor vehicle accidents and serious physical injuries that result from the use of hand held cell phones.  The Court in Wells, grappled with the same issue when analyzing seat belt requirements, and upheld the law holding the New York State’s “compelling interest in saving lives.”  Wells, supra, p. 119, 495 N.Y.S.2d 591 and that, “Death on the highway can no longer be considered as a personal and individual tragedy.”  Wells, supra at 120, 495 N.Y.S.2d 591.  In a similar vein, the Court in Weber, in evaluating the constitutionality of the seat belt law, stated “Besides its interests in protecting the general public, the state may also have a valid interest in protecting individuals, even from themselves.”  Weber, supra at 997, 494 N.Y.S.2d 960.  Indeed, in the case at bar, the only impediment placed upon the public is to refrain from using a hand held cell phone while the car is in motion.  The citizen can speak after the car has stopped or may operate a “hands free” cell phone.  VTL 1225-C(5) (Ch. 69, Laws 2001, eff. November 1, 2001).  This limited inconvenience is no greater than requiring the use of seat belts or motorcycle helmets, or prohibiting cigarette smoking in public buildings.  Moreover, the statute mandates a Court must waive the fine if a defendant provides the Court with proof of purchase of a hands free device (effective until March 1, 2002).  VTL 1225-C(5), (8).  Accordingly, the state’s regulation here is reasonable in its intentions and is a valid use of the legislature’s police authority.  Brown v. City of New York¸250 A.D.2d 546, 673 N.Y.S.2d 643 (1^st Dept.) appeal denied 92 N.Y.2d 810, 680 N.Y.S.2d 54, 702 N.E.2d 839 (1998); People v. Bennett, 89 Misc.2d 382, 391 N.Y.S.2d 506 (Just. Ct. Town of Colonie 1977).

 

                        And the Court finally determined, as follows, that VTL Section 1225-C did not violate the Equal Protection Clause of the United States Constitution:

 

As a general rule, a legislative body may exempt certain situations and professions so long as the exclusions bear a reasonable relation to the desired legislative purpose.  Weber, supra at 997, 494 N.Y.S.2d 960; Mayflower Farms v. Baldwin, 267 N.Y. 9, 15, 195 N.E. 532 (1935) reversed on other grounds 297 U.S. 266, 56 Ct. 457, 80 L.Ed. 675 (1936).  The new cell phone law and its exclusions are not based on race, sex, age or national origins.  Therefore, no strict scrutiny test requiring or compelling governmental interest is necessary.  Wells, supra at 121, 495 N.Y.S.2d 591.  It is logical that a legislature would exempt those vehicles and professionals who are needed to make emergency phone calls as part of their employment, and to extend this exemption to the ordinary citizen who needs to make a cell phone call for those very reasons as well.  The legislature of the State of New York recognized the need for all drivers to assist at times of emergency, and also the fact that those types of phone calls are short in duration and would not result in the long, distracting phone calls that are likely to result in a motor vehicle accident.

 

People v. Moore, 196 Misc.2d 340, 765 N.Y.S.2d 218 (Cayuga Heights Village Court 2003)

 

                        Moore was charged with violating VTL Section 1225-C2 “while using a mobile telephone to engage in a call while such vehicle is in motion” at a time “when defendant was in the parking lot of the Community Corners shopping center in the Village of Cayuga Heights on November 11, 2002 at 5:00 PM”.

 

                        The Court made the following findings of fact:

 

On November 11, 2002, at approximately 5:00 PM, Officer Wright observed defendant, David S. Moore, driving a motor vehicle moving in a north easterly direction within in the parking lot of Community Corners.  Community Corners is a privately owned shopping center next to Hanshaw Road within the Village of Cayuga Heights.  Defendant was speaking on a mobile telephone while driving.  Officer Wright stopped defendant’s vehicle on Hanshaw Road after defendant left the parking lot.  Officer Wright did not observe defendant speaking on the telephone while defendant drove on Hanshaw Road.  No evidence was presented refuting these facts.  While there was some cross examination of the officer concerning his initial location, defendant’s use/non-use of a seatbelt, and the officer/defendant conversation after the stop, the Court finds these issues unrelated to the elements of the charge and the officer’s testimony credible.  The Court finds beyond a reasonable doubt that on November 11, 2002 defendant operated a moving motor vehicle while using a mobile telephone to engage in a call while in a private parking lot within the Village of Cayuga Heights.

 

                        The question presented to the Court was “whether use of a mobile telephone while driving a motor vehicle is prohibited in a private lot”.

 

                        And the Court concluded, as follows: that a “parking lot” was not a public highway within the contemplation of VTL Section 1225-c:

 

Generally the Vehicle and Traffic Law (V&TL) regulates activity occurring “upon public highways, private roads open to public motor vehicle traffic and any other parking lot” (§ 1100(a), V&TL).  And because there is an obvious risk of injuring pedestrians and property in parking lots, it would make sense for the legislature to regulate simultaneous driving and telephone use in parking lots.  But § 1100(a) limits itself, inter alia, by adding “except where a different place is specifically referred to in a given section.”  Therefore, if a traffic infraction statute specifically identifies the location(s) where the activity is prohibited, that statute controls and not §1100’s broader definition of the locations.

 

Section 1225-c.2.(a) has such a limitation and only prohibits simultaneous driving and mobile phone use if the driver is “upon a public highway.”  Had the legislature excluded this language, then phone use while driving would have been prohibited in the expanded locations set forth in § 1100 – including “any parking lot.”

 

While on its face, it appears that Section 1225-c 2 does not apply in parking lots, there is a need to check to see if the law somehow reincorporates parking lots into the definition of public highways.  First, there is a separate definition for “parking lots” found at § 129-B, V&TL, but it does not bootstrap parking lots into public highways.  Second, § 134, V&TL, specifically defines a “public highway” as ‘[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way.”  While shopping center parking lots appear to be open to the public and, thus, loosely fit into the public highway definition as a “public place” or “other public way,” they  really are not “public.”  Private shopping center parking lots exist for the benefit of the private owners.  They only benefit the public to the extent the private owner wishes.  The public may be invited into shopping center parking lots, but the private owners regulate to whom (e.g. customers only) and when the lots are available (e.g. during store hours).  The private owners may even ban certain members of the public (e.g. past shoplifters).  These private rights can be exercised benevolently, selfishly, or arbitrarily, and are very different from the state’s obligation to regulate public highways in the public’s interest.  A privately owned and controlled shopping center’s parking lot does not fit within the definition of a public highway.  People v. Thew, 44 N.Y.2d. 681, 405 N.Y.S.2d 433, 376 N.E.2d 906 (1978).

 

People v. Deep, 12 Misc.3d 1137, 821 N.Y.S.2d 381 (Ithaca City Court 2006).

 

                        Deep was charged, inter alia, with one count of operating a cell phone in violation of VTL Section 1225-c.

 

                        The issue presented was whether or not making a cell phone call when the driver was stopped at a red light constituted a violation.  After a bench trial the Court, as follows, found Deep not guilty of the purported cell phone use violation:

 

[W]ith regard to the cell phone charge, VTL Section 1225-c(2) prohibits use of a cell phone while operating a motor vehicle on a public highway if one is using the phone to engage in a call while the vehicle is in motion.  In this instance, Ms. Deep testified that she did not engage in a call, that the call did not go through, and the only time she attempted to place a call was while the vehicle was stopped at a red light.  The testimony of the officers did not support her statement that at one point she did stop at a red light, and there was no other compelling testimony to refute her statement that her attempted call did not go through.  Accordingly, the Court finds insufficient proof that Ms. Deep was, in fact, using the cell phone to engage in a call as that phrase is defined in Section 1225-c(1)(f) of the Vehicle and Traffic Law.  The Court therefore finds her not guilty of the cell phone charge as filed.

 

People v. Campanaro, 19 Misc.3d 116(A), 862 N.Y.S.2d 816, (Watertown City Court 2008)

 

                        Campanaro was charged with two violations of VTL Section 1225-C; and Campanaro denied using the cell phone when stopped by a police officer; however, Campanaro conceded that he did have the cell phone up to his ear held by his right hand advising the officer that “I drive like this all the time”.

 

                        At trial:

 

In his defense the defendant admitted “handling the cell phone [however] he did not make a call, but was simply viewing his cell phone to determine if an incoming call was made”…The defendant added that the telephone records if presented would demonstrate that no call was made or received at the time of the offense”…The Court concluded the defense offered by the defendant was sufficient to “rebut” the presumption he was “engaged in a call” (VTL 1225-C[2][b]).

 

                        The Court found that:

 

The credible evidence shows beyond a reasonable doubt the defendant was using a “hand-held mobile telephone…using at least one hand” (VTL 1225-c[1][d]) at the time Officer Maney observed him driving the vehicle along Coffeen Street; that the defendant was “engaged in a call…talking into…a hand-held mobile telephone” (VTL 1225-c[1][f]) “using [said cell phone] by “holding a mobile telephone to, or in the immediate proximity of the user’s ear” (VTL 1225-c[1][c]; that the cell phone was held in the “immediate proximity…[at a] distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone…in contact with such operator’s ear” (VTL 1225-c[1][g]).

 

VTL 1225-c(2)(b) provides that such evidence, as heretofore found by the Court to have been proven beyond a reasonable doubt, “creates a presumption [that] “[A]n operator of a motor vehicle…is presumed to be engaging in a call within the meaning of the Section…”The Court finds that said presumption has been shown and, further, the Court finds that Officer Maney saw the defendant “speak on the cell phone” as he followed the vehicle down Coffeen Street several blocks as the defendant held the cell phone to his right ear with his right hand all of which was lighted by the cell phone’s light.

 

                        And the Court, as follows, rejected Campanaro’s attempt to rebut the presumption that he was “engaged in a call”:

 

The question, then, for the Court as trier of facts is whether this evidence rebutted the presumption”…by tending to show that the operator was not engaged in a call” (VTL 1225-c[2][b]).  The Court in this case does not credit the testimony of the defendant offered to explain his conduct that evening for the following reasons.

 

Officer Maney testified that he was able to clearly observe the defendant hold the cell phone at or next to his right ear from the time he observed him, as he followed him down Coffeen Street several blocks and until he activated his lights to stop the defendant at which point the defendant pulled the cell phone away from the side of his head and down out of sight.  The defendant agreed with Officer Maney’s testimony that the cell phone light “lit up his ear” “yes, it was.”

 

The defendant testified that he only “flicked on his cell phone” to see who was calling at the time Officer Maney first observed him on Coffeen Street by reading the information displayed in its lighted screen.  He said he then drove further before “flicking” it open again to confirm who had just called at which point he was stopped by Officer Maney.  He said that, as was his usual practice, he held the cell phone in his right hand resting his arm on the seat’s armrest as he drives his vehicle.

 

In [Village of Floral Park v.] Cusmai the driver testified that when he checked the cell phone screen he held it at an arm’s length.  In this case the defendant testified that he agreed with Officer Maney’s observation the cell phone was so close to the side of his head that it “lit up his ear.”  So, if all the defendant did was check the screen to see who was calling when first observed by the officer how could he do so and why would he do so by holding the cell phone next to his ear out of his line of sight to view the screen for information displayed there.  So unless the defendant had “eyes on the back of his head” as the saying goes or, in this case on the side of his head, he could not have been viewing the screen for information.

 

Furthermore, Officer Maney testified that he never saw the defendant remove the cell phone from his ear the whole time he observed him “talking” into the cell phone that evening from the time he saw him pass by until the time he stopped him.  The defendant testified after he checked the screen initially he did not activate the cell phone again until just before he was stopped as he traveled down Coffeen Street.

 

                        And, in the conclusion, the Court noted that:

 

In New York, then, one can use a hand-held cell phone to engage in a conversation so long as the car is not in motion and/or when the driver has activated the phone to review information displayed on its screen so long as the driver is not”…talking into or listening on a hand-held mobile telephone” (VTL 1225-c[1][f]) while the car is in motion looking at information on the cell phone screen is not being “engaged in call” prohibited by law.

 

*     *     *

 

The Court finds that the People have shown that the inference the defendant was “engaged in a call” created by the rebuttable presumption at VTL 1225-c(2)(b) has been established beyond a reasonable doubt and that the defendant has failed to rebut the same with credible evidence.  The Court finds the defendant guilty of violating VTL 1225-c(2)(a) and is fined $100 and assessed a $45 surcharge and a $5 victim fee.

 

People v. Hudacek, 26 Misc.3d 55, 894 N.Y.S.2d 325 (App. T. 2009)

 

                        Hudacek appealed from a judgment of the Justice Court of the Village of Tuckahoe in which she was convicted, after a non-jury trial, of operating a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle was in motion.

 

Defendant was convicted after a nonjury trial of driving her vehicle while using a mobile telephone (Vehicle and Traffic Law Section 1225-c).

 

Vehicle and Traffic Law Section 1225-c(2)(a) makes it unlawful for a person to operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion.  The statute, however, expressly excepts the use of a “hands-free mobile telephone” from this prohibition (Vehicle and Traffic Law Section 1225-c[3][c]).

 

Viewing the evidence in a light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983], we deem it legally insufficient to establish all of the elements of the offense beyond a reasonable doubt (Vehicle and Traffic Law Section 1225-c).  Although the officer initially testified to having observed defendant with a cell phone in her left hand and up to her left ear, he subsequently stated that he could not recall noticing a cell phone in the vehicle.  During the officer’s cross-examination, the pro se defendant showed him a Bluetooth ear piece, and he responded that he did not recall seeing the cell phone at the stop and that he saw “her hand up to the ear like that, so that is why I wrote her the cell phone ticket.”  The officer further stated, “It is a hands free device when there are no hands on it.”  Defendant argued that it takes two or three seconds to rest the ear piece on her ear and that, with long hair, she had to adjust it.  The officer’s own testimony, when considered as a whole and in the light most favorable to the People, creates a reasonable doubt with respect to whether defendant was holding a cell phone, rather than attaching a Bluetooth device, to her ear.

 

We note that the Vehicle and Traffic Law defines a “hands-free mobile telephone” as “a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, 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” (Vehicle and Traffic Law Section 1225-c[1][e] [emphasis added]).  Defendant’s statement to the effect that she was activating the telephone in her pocketbook by attaching the ear piece to her ear reflects conduct which the Legislature chose not to proscribe.  Furthermore, the statute specifically provides that “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” (Vehicle and Traffic Law Section 1225-c[1][f] (emphasis added]).

 

People v. Gay, 18 Misc. 3d 1114(A), 856 N.Y.S.2d 501 (Town of Webster Justice Court 2008)

 

                        Gay was charged with using a mobile telephone while operating a motor vehicle on a public highway in violation of VTL Section 1225-c.  Gay moved to dismiss the charge.

 

                        Justice Court, as follows, denied Gay’s motion:

 

VTL 1225-c(2)(a) states “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.”  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 [phone] 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.  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.

                                                

People v. Smith, 24 Misc.3d 1212(A), 890 N.Y.S.2d 370 (Ithaca City Court 2009)

 

                        Smith was charged with operating a motor vehicle in violation of VTL Section 1225-c.  After a bench trial the Court, as follows, outlined the facts:

 

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.

 

summarized the law:

 

Vehicle and Traffic Law Section 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 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.

 

and concluded as follows:

 

This Court previously ruled in the matter of 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.

 

*     *     *

 

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-held 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.  The statute does not carry a mandatory fine, and given the lack of aggravating circumstances, the Court sentences the defendant 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.

 

People v. Bozak, 29 Misc.3d 711, 907 N.Y.S.2d 632 (Troy City Court 2010)

 

                        Bozak sought dismissal of a charge of violating VTL Section 1225-c on the ground that “his use of a hand held amateur radio does not fit the definition of a mobile telephone and as such the present charge should be dismissed”.

 

                        The Court, as follows, granted the motion:

 

The Vehicle and Traffic Law defines a “Mobile Telephone” as a “device used by subscribers and other users of wireless telephone service to access such service” (VTL Section 1225-c[1][a]).  A “Wireless Telephone Service” is defined as “two-way real-time voice tele-communications service that is interconnected to a public switched telephone network and is provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. §20.3” (VTL Section 1225-c[1][b]) (emphasis added).  A review of 47 C.F.R. § 20.3 reveals that Citizens Band Radio Service is defined under private mobile radio service not commercial mobile radio service.  Therefore, the Court finds that the use of an amateur radio device does not fit the definition of a mobile telephone as defined under the Vehicle and Traffic Law and grants the defendant’s motion to dismiss.

 

People v. Raffa, 31 Misc.3d 8, 919 N.Y.S.2d 267 (App. T. 2011)

 

                        Raffa was convicted, after a non-jury trial, of violating VTL Section 1225-c “by using a hand-held amateur radio device while operating his vehicle on a public highway”.

 

                        The Court, as follows, reversed the conviction:

 

A person violates this statute when he or she employs a “device used by subscribers and other users of wireless telephone service to access such service” (Vehicle and Traffic Law Section 1225-c[1][9].  Wireless telephone service is defined as a “two-way real time voice telephone communications service that is interconnected to a public switched telephone network and is provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. 20.3.”  47 CFR 20.3 exempts from its definition of commercial mobile radio such “private” services as citizens band radio, which is distinct from amateur radio services (cf. People v. Bozak, 29 Misc.3d 711, 907 N.Y.S.2d 632 [Troy City Ct. 2010]), which may function as “voluntary noncommercial communication service[s]” (47 CFR 97.1[a]).  If, as the People contend, amateur radios may be connected to public switched telephone networks, they failed to prove that defendant’s device was so connected, much less to a commercial mobile radio service.  Thus, the mere proof that defendant employed a hand-held amateur radio device while operating his motor vehicle did not establish his guilt of violating Vehicle and Traffic Law Section 1225-c(2)(a) beyond a reasonable doubt.

 

Smilow v. New York State Department of Motor Vehicles, 95 A.D.3d 1023, 944 N.Y.S.2d 248 (2d Dept 2012)

 

                        The Appellate Division summarized the facts as follows:

 

The determination that the petitioner “operate[d] a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle [was] in motion” (Vehicle and Traffic Law Section 1225-c[2][a] was supported by substantial evidence (see generally Matter of Peterson v. State of N.Y. Dept. of Motor Vehs., 90 A.D.3d 1055, 934 N.Y.S.2d 837, Iv. denied 18 N.Y.3d 810, 2012 N.Y. Slip Op. 69140, 2012 WL 1085494 [2012]).  A police officer credibly testified at a hearing that she had observed the petitioner, while he was driving his car westbound on Hamilton Avenue, with a “cell phone…in [his] right hand…approximately three to five inches from [his] right ear.”  At the hearing, aside from disputing the exact distance between the phone and his ear, the petitioner conceded that the police officer’s testimony was “pretty accurate.”  According to Vehicle and Traffic Law Section 1225-c(2)(b), “[a]n operator of a motor vehicle 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 engaged in a call”…That presumption was not rebutted in this case.

 

                        And the Second Department, as follows: affirmed the determination that Smilow had violated VTL Section 1225-C:

 

Contrary to the petitioner’s contention, his claim that the device that he was using at the time of the offense was a “speaker enabled iPhone” does not negate the police officer’s testimony that, while the petitioner was driving a motor vehicle, he was in fact using one of his hands to hold the device next to his ear.  While “the use of a hands-free mobile telephone” by a person who is operating a vehicle is in certain circumstances permissible (Vehicle and Traffic Law Section 1225-c[3][c]), the relevant statute defines a “[h]ands-free mobile telephone” as one that “has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a call without the use of either hand” (Vehicle and Traffic Law Section 1225-c[1][e] [emphasis added]).  There is no proof to support the proposition that, at the time of the infraction, the petitioner was “engage[d] in a call without the use of either hand;” the record, on the contrary, very clearly supports the finding that he was using one of his hands to hold the phone “in the immediate proximity of his…ear” (Vehicle and Traffic Law Section 1225-c[1][e][2][b]; see People v. Gay, 18 Misc.3d 1114[A], 2008 N.Y. Slip Op. 50025[U], 2008 WL 108872 [Just. Ct. Town of Webster 2008]; People v. Smith, 24 Misc.3d 1212[A], 2009 N.Y. Slip Op. 51431[U], 2009 WL 1929094 [Ithaca City Ct. 2009]).

 

Postscript

 

                        VTL Section 1225-c has “morphed” to civil actions from criminal proceedings.

 

                        Morano v. Slattery Skanska, Inc., 18 Misc.3d 464, 846 N.Y.S.2d 881 (Sup. Ct. Q. Co. 2007), a motor vehicle negligence action, addressed the question of whether “the mere fact that a defendant was in possession of a cell phone at the time of an accident, entitle[d] the plaintiff to said defendant’s cell phone records, in order to ascertain whether the cell phone was in use at that time, and with whom?”

 

                        The Court described the background as follows:

 

On April 1, 2006, at approximately 11:00 a.m., plaintiff Michael Morano was operating a motorcycle which collided with a motor vehicle, operated by defendant Esther Katoni, and which had been in the process of making a right turn into her driveway at 629 Ashford Avenue, Ardsley, New York.  The within action was commenced on July 26, 2006 with the filing of a Summons and Complaint against, inter alia, defendant Esther Katoni, alleging that due to her negligence, she caused the subject collision, which resulted in severe injuries[.].

 

                        And the Court, as follows, set forth the procedural issue:

 

This underlying issue serves as the basis of plaintiff’s instant motion, pursuant to CPLR § 3120 and § 3124, to enforce a subpoena duces tecum to Celico Partnership d/b/a Verizon Wireless, seeking defendant Esther Katoni’s cellular phone records for calls transmitted or received by her on April 1, 2006, the date of the subject accident, and on April 2, 2006.  The defendants cross move herein, pursuant to CPLR § 2304 and § 3103, to quash the forementioned subpoena, on the grounds that it is an improper attempt to obtain discovery, constitutes a fishing expedition, and seeks post accident records.

 

                        After discussing several threshold legal issues, the Court ruled that:

 

The standard to be applied in determining the discoverability of the requested cell phone records is whether they are “material and necessary” in the prosecution or defense of this action, which is to be interpreted liberally and really amounts to whether they are relevant (see CPLR 3101[a]; Allen v. Crowell-Collier Publishing Company, 21 N.Y.2d 403, 406-407, 288 N.Y.S.2d 449, 235 N.E.2d 430).

 

On June 28, 2001, a law prohibiting the use of hand held cell phones while operating a motor vehicle was enacted in this State (Chapter 69, Laws of 2001, Section 1225-C of the Vehicle and Traffic Law).  Its legislative intent was the need to protect its citizens from the numerous motor vehicle accidents and serious injuries that result from the use of hand held cell phones.  (see People v. Neville, 190 Misc.2d 432, 436, 737 N.Y.S.2d 251)…

 

*     *     *

 

The unexcused failure to observe the standard imposed by statute constitutes negligence, and any evidence, whether direct or circumstantial, indicating such a violation would be relevant. (see Martin v. Herzog, 228 N.Y. 164 [1920]).

 

Furthermore, there are many studies that contend that even the use of a “hands-free mobile telephone” to engage in a call while operating a motor vehicle, may contribute causing an accident, and would be relevant to the issue of negligence…As an aside, there are those who trace the admonition against distracted driving all the way back to Biblical verse, Genesis 45:24:  “Do not become agitated on the way” (see Tractate Taanit 10b).  Unfortunately, there are those who even “text message” while driving, but this decision deals only with the potential hazards of talking on a cell phone while operating a vehicle.

 

On the other hand, as indicated earlier, it is the opinion of the Court, that the mere fact that a defendant was in the possession of a cell phone at the time of an accident, without any witness testimony as to it being used at that time, would not entitle the plaintiff to said defendant’s cell phone records, since such a discovery request would amount to nothing more than a fishing expedition.  (see Carpio v. Leahy Mechanical Corp., 30 AD3d 554, 816 N.Y.S.2d 762 [2006]; Auerback v. Klein, 30 A.D.3d 451, 816 N.Y.S.2d 376) [2006].

 

However, in the instant matter, plaintiff has submitted an affidavit, indicating that he observed defendant Katoni “with an object in her hand held to her head”, immediately before the accident, which gave him the impression that she was using a cell phone to call for assistance.  Under these circumstances, plaintiff would be entitled to only that portion of defendant Katoni’s Verizon cell phone records, which would disclose calls transmitted or received by her on April 1, 2006, limited to the estimated time of the subject accident.  Such limited disclosure, obtained via in camera review, would protect privacy, while revealing any calls made or received within the estimated time zone in close proximity to the accident, and would be relevant to the issue of negligence…At her deposition of June 19, 2007, defendant Katoni estimated that it was “after 10:30 a.m., immediately preceding the accident.  Police Lt. Carl Calabrese testified at his deposition that the “desk officer” who fielded the 911 call, reporting the subject accident, received said call at 11:05 a.m.  Accordingly, upon in camera review of defendant Katoni’s Verizon cell phone records, the Court discloses that on April 1, 2006 at 9:47 a.m., a call was placed, that lasted one minute; at 10:50 a.m., a call was placed for an interval of two minutes; at 10:52 a.m., a call was placed which lasted three minutes; and at 11:06, a call was placed, which lasted one minute.  The defendants are hereby directed to serve plaintiff, within 20 days of the date of service of a copy of this order together with notice of entry, with a copy of that portion of the aforementioned cell phone records, indicating which specific telephone numbers were called from 9:47 a.m. to 11:06 a.m. on April 1, 2006.  In accordance with defendant Katoni’s deposition testimony, it would appear that the cell phone number listed in her records as the one to which she placed a call at 11:06 a.m., matches the cell phone number of her husband.  Thus, based on the deposition testimony of Lt. Calabrese and the parties, the Court has disclosed the relevant cell phone numbers within the general time frame of the subject accident.

 

                        In Mangione v. Jacobs, 37 Misc.3d 711, 950 N.Y.S.2d 457 (Sup. Ct. Q. Co. 2012), a personal injury action against a taxi driver and the owner of the cab, defendants moved for summary judgment on the issue of liability and:

 

Mangione oppose[d] the motion for summary judgment alleging that, while she was a passenger in the taxi, she had observed its driver, defendant Simbana, talking out loud, conveying the impression that he was, while driving, continuously engaged in conversation with someone while using either an earpiece or a “hands free” telephone device.

 

In opposing the motion, Mangione’s counsel correctly observes that the New York City Taxi and Limousine Commission, for numerous years, has forbade taxi and livery car drivers from engaging in any telephone conversations, even while using a “hands-free” device, except when the vehicle is parked.  Defense counsel for Ramabel and Simbana contend that the regulation was not in effect on the date of the accident.

 

                        The Court denied the motion holding that:

 

The starting point for the discussion is Vehicle and Traffic Law (“VTL”) section 1225-c(3), exempting “hands free” devices from the ban against motorists engaging in cell phone conversations while driving in New York State…

 

Supreme Court Justice Martin E. Ritholtz of this Court, in Morano v. Slattery Skanska, Inc., 18 Misc.3d 464, 846 N.Y.S.2d 881 [Sup. Ct. Queens County 2007], a significant judicial opinion concerning the use of cell phones while driving and the production of cell phone records, cites numerous articles on psychological science and visual perception and observation, suggesting that “even the use of a ‘hands-free mobile telephone’ to engage in a call while operating a motor vehicle, may contribute to causing an accident, and would be relevant to the issue of negligence.”  Id. at 474, 846 N.Y.S.2d 881.

 

This Court agrees with plaintiff’s counsel that the New York City Taxi and Limousine Commission had in place regulations, banning the use of “a portable or hands-free electronic device”…that were more severe and onerous on drivers of taxis, limousines, vehicles for hire, and livery cars than on the general pool of New York State motorists (VTL Section 1225-c(1)(e) & Section 1225-c(3)(c) (permitting “a hands-free mobile telephone”).

 

The New York City Administrative Code, indeed, has a specific section governing “Passengers’ bills of rights.”  It provides that passengers have a right to “a driver who does not use a cell phone (hand-held or hands free) while driving” taxicabs [NYC Adm. Code § 9-537(e)(11)].

 

Following the reasoning of Justice Martin E. Ritholtz of this Court, in Morano v. Slattery Skanska, Inc., 18 Misc.3d 464, 846 N.Y.S.2d 881, supra, this Court holds that, under certain circumstances – even without relying on the rules and regulations applicable to drivers of taxicabs, livery cars, and commuter vans – the use of a hands-free cell phone can constitute a distraction for drivers.  The conversation of the motorist, even on a hands-free mobile telephone device or apparatus, could divert the driver’s mental focus from watching the road to thinking about the topic of conversation…

 

Accordingly, as a matter of common-law negligence, Mangione, the plaintiff, has presented enough testimony at her deposition about Simbana’s conduct while driving to warrant the denial of the motion by defendants Ramabel and Simbana for summary judgment on the issue of liability.

 

Conclusion

 

                        Section 1225-c(2) of the New York Vehicle and Traffic Law establishes certainty only where the facts and circumstances are undisputed or indisputable; however, where unique circumstances or questions of fact arise, the Courts carefully scrutinize each term or phrase and definition in the statute to determine whether or not liability can be found for a violation of the VTL.

 

 

                       

 

 

 

Victor M. Metsch is a Senior Litigation/ADR Counsel at Smith, Gambrell & Russell, LLP.  He can be reached at vmetsch@sgrlaw.com.  He maintains a website at www.LegalVictor.net and can be found on Twitter @LegalVictor1.