Opinion
1702-07.
Decided April 7, 2008.
Cindy Intschert, District Attorney of Jefferson Co. By: Attorney Rodney Kyle, Watertown, New York., Anthony T. Campanaro, po se.
Officer Michael Maney testified that at 7:23 p.m. on October 19, 2007 while on routine road patrol he parked his patrol vehicle about 25 feet off the road to observe traffic traveling along Coffeen Street. He said at that location it was dark and he did not have his vehicle lights on.
He said he observed a red vehicle traveling west pass before him and he could clearly see a cell phone held to the operator's right ear. He said he had a clear view through the passenger side of the vehicle where he could see the back light from the cell phone lighting the cheek, base area of the phone and a small sheen on the outside of the cell phone that also was lit up. He could see the cell phone being held in the driver's right hand held up to the driver's right ear as the driver sat in the driver's seat of the vehicle operating it while using the phone.
He said that he turned on his vehicle lights, pulled out into traffic behind the defendant's vehicle at the 400 block and followed it to the 1000 block of Coffeen Street. All this time he observed the driver continue to speak on the cell phone while traveling right behind the car through the back window.
He said he activated his emergency lights in the 1000 block and at that time he observed the operator of the car quickly pull his right hand holding the cell phone from his right ear illuminated by the cell phone light.
He said that he explained to the defendant what he had observed about his cell phone use as the reason for stopping him. He said the defendant denied using the cell phone and added, however, he had used it on another street earlier several blocks away from Coffeen Street.
Officer Maney said that the defendant said because he was not using a hands free device he was aware he was in violation of the law.
Mr. Campanaro testified that he had been using his cell phone but he had ceased to use it when he entered Coffeen Street. He said that as he traveled down Coffeen Street he did have the cell phone "up to my ear" held by his right hand stating "I drive like this all the time."
He said "my wife called. . ., the phone lit up and I flicked it open to see who it was.it was her." He said he did not answer the phone at that time after determining who was calling. He said he flicked it back down and then "I flicked it back up again. . ., the light went on and I made sure it was her. . .I was not talking on my cell phone." He said when the light went on a second time was when the officer stopped him.
He agreed that the officer was correct when he stated he saw from the cell phone light "his ear lit up." He explained that when the cell phone rings you can "flick it up," it "lights up. . .the whole screen illuminates and the keypads illuminate and I was looking at it" to see who was calling." He said you can allow it to continue to ring and not answer it or answer it once it is flicked open. He said that every time the phone is flicked open "it lights up."
He said that the second time he flicked it open causing the light to come on just before he said the officer stopped him he did not do so in response to the cell phone ring, but rather, to see if it was really my wife who had just called by retrieving the last number by pushing a button on the cell phone.
Law
VTL 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."
The statute defines various terms used in the law as well as creating a rebuttable presumption the driver was "engaging in a call" when certain conduct is observed.
In People v Neville (2002), 190 Misc 2d 432, the Court observed that under VTL 1225-C(2) ". . .only impediment placed upon the public is to refrain from using a hand-held cell phone while the car is in motion" allowing "[T]he citizen [to] speak after the car has stopped or may operate a hands-free cell phone" (id. p. 436).
In Village of Floral Park v Cusmai, NYLJ, 1/5/2004, p. 20, c. 1, the facts of that case and this one are similar. The officer was able to observe the defendant operating a vehicle "with a cell phone about six inches from [his] ear" (id). The defendant testified that "he did pick up his cell phone thinking he had an incoming call. . .held [it] at arm's length with his right hand to view the cell phone screen [but] there was no incoming call" (id).
The Court noted that "[T]he cell phone statute . . . provides in Section 1225-c2(b) that there exists a rebuttal presumption. Specifically, when a driver has the cell phone in close proximity to his ear while driving, there is a presumption that the driver is taking a call. But this presumption is rebuttable by evidence tending to show that the driver was not engaged in a call" (id).
The Court found that the "credible" evidence shows the officer "observed the defendant with a cell phone in his hand while operating a motor vehicle on a public highway. . .[but]. . .could not testify that the defendant was actually engaged in a call but did observe what appeared to be a driver on a cell phone" (id).
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" (id). The defendant added that the telephone records if presented would demonstrate that no call was made or received at the time of the offense" (id). The Court concluded the defense offered by the defendant was sufficient to "rebut" the presumption he was "engaged in a call" (VTL 1225-c[b]) and dismissed the charge.
In People v Deep (2006), 12 Misc 3d 1137, the Court stated VTL 1225-c(2) ". . .prohibits. . .using the phone to engage in a call while the vehicle is in motion" as a preface to ruling, based upon the defendant's testimony that ". . .the only time she attempted to place a call was while the vehicle was stopped at a red light," there was ". . .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" (id. p. 1139) while the vehicle was in motion.
In McKinney's Consolidated Laws of New York, BK 62A, Vehicle and Traffic Law, 2008 Cumulative Pocket Part, Joseph Corrieri in his commentaries for VTL 1225-c discussed the Village of Floral Park v Cusmai (2004) decision reported in the New York Law Journal at p. 20, c. 1.
He stated "[S]ubdivision 2b provides that when an operator of a motor vehicle holds a mobile phone 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" (id. pps. 164-165). He goes on to say that "[S]ubdivision b goes on to provide that this presumption is rebutted by evidence tending to show that the operator was not engaged in a call" (id. p. 165).
Attorney Corrieri after reviewing the rebuttal evidence of the driver which included his maintaining "that the telephone records if presented would demonstrate that no call was made or received at the time of the offense'" along with his testimony he did not make a call, but rather, "was simply viewing his cell phone to determine if an incoming call was made" all of which the Court found sufficient to "rebut the presumption that he was not engaged in a call" termed the defendant's statement concerning "telephone records" "[T]he troubling part of the decision" (id).
He queried "[S]ince the telephone records were at the disposal of the defendant, one would ask why those records were not produced;" and "[I]f these records were in the control of the defendant and not produced, was the presumption rebutted?" (Id).
In New York Vehicle and Traffic Law, 2d Ed., 2007 Cumulative Supplement, James Rose in his commentary at Section 31:8 dealing with cell phone use in motor vehicles states "[A]n operator who holds a telephone in the immediate proximity of his ear will be presumed to be engaged in a call. . ., a presumption which he suggests "can be rebutted by evidence that shows no phone call was being made presumably telephone records would be one way of rebutting the presumption, or perhaps the testimony of another occupant in the vehicle" (id. pps. 253-254).
Decision
The People have shown by credible evidence beyond a reasonable doubt the defendant violated VTL 1225-c (2)(a): ". . .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 officer testified he observed the defendant driving his motor vehicle on Coffeen Street in the City of Watertown at 7:23 p.m. on October 19, 2007 and followed the defendant's car several blocks along Coffeen Street before he stopped the vehicle. He identified the defendant as the driver after the vehicle was stopped. This evidence shows beyond a reasonable doubt the defendant was "operating a motor vehicle upon a public highway" (Coffeen Street) at the time in question.
During this time "while such vehicle was in motion" Officer Maney testified he could clearly see into the defendant's vehicle through the front passenger window as he sat in his patrol car perpendicular about 25 feet from the lane of travel in which the car was traveling west that the driver was holding in his right hand a cell phone to his right ear. He said the cell phone light illuminated the driver's cheek as well as the cell phone base and the lit cell phone screen all of which created a sheen on the outside of the cell phone.
He said that he left the area where he was parked, followed the defendant's vehicle down Coffeen Street several blocks (400 block to 1000 block). He said that he could observe the driver hold the cell phone to his ear while he continued to "speak on the cell phone" through the rear window of the vehicle. He said that the driver continued to hold the cell phone to his right ear as he observed him talking into it up to the point that he activated his emergency lights to stop the vehicle. He said at that moment he saw the operator of the car "quickly pull his right hand holding the cell phone from his right ear" illuminated by the cell phone light.
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[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[f]) "using [said cell phone] by "holding a mobile telephone to, or in the immediate proximity of the user's ear" (VTL 1225-c[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[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 "[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.
Rebuttable Presumption
VTL 1225-c(2)(b) states that "[T]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call."
In People v McKenzie (1986), 67 NY2d 695, the Court stated "Statutory presumptions in New York are permissive [citations omitted]" (id. p. 696).
In People v Niene (2004), 8 Misc 3d 649, the Court observed that "[T]he use of a statutory presumption, to furnish an element of required proof, has long been recognized as an acceptable practice which does not violate a defendant's constitutional rights" (id. p. 652).
The Niene Court went on to explain:
"[A] presumption may be an inference drawn from known facts or created by legislative fiat. A presumption has the effect of evidence and, in the criminal law, is permissive and generally rebuttable. ( People v McKenzie, 67 NY2d 695, 490 NE2d 842, 499 NSY2d 923 [1986]). It is a time-honored mechanism to meet a practical prosecutorial need but does not relieve the People's burden of proving guilt beyond a reasonable doubt. In order to be constitutionally valid there must be a rational connection between the facts that are proved and the fact that is to be inferred. (Id).
In People v Tarbell (1986) the Court said that "[A] permissive inference suggests to the jury a possible conclusion to be drawn if the state proves predicate facts, but does not require the jury to draw that conclusion' [citations omitted]" (id. 966). So, a ". . .jury may, but need not, accept the permissible inference supported by this presumption, which. . .is rebuttable. . ." ( People v Virkel (1998), 178 Misc 2d 218, 222).
In People v Rivera (1994), 161 Misc 2d 237, the Court pointed out ". . .two distinctly separate concepts. . .[the] important difference between a fact finder's ability to either draw or reject an inference and [secondly] the weight of evidence needed to overcome an inference" (id. p. 243). On the second point the fact finder must be given enough information to enable it to intelligently decide how to apply it [to accept or reject the rebuttable presumption the defendant in this case was or was not engaged in a call . . . by talking or listening on a hand-held mobile phone (VTL 1225-c[b)]" (id. p. 247).
The Rivera Court noted at p. 246 that in People v Rohena (1992), 186 AD2d 509, that this second requirement to explain "the weight of evidence needed to overcome an inference" is satisfied so long as it is considered in light of the general principles concerning the drawing of circumstantial inferences" (id. p. 511).
Criminal Jury Instructions Circumstantial Evidence charge reads, in part, that the trier of fact ". . .must decide, on the basis of all the evidence, what facts, if any, have been proven" and "[A]ny facts upon which an inference of guilt can be drawn must be proven beyond a reasonable doubt." Once that has been done ". . .then, you must decide what inferences, if any, can be drawn from those facts."
The instruction goes on to state:
Before you may draw an inference of guilt, however, that inference must be the only one that can fairly and reasonably be drawn from the facts, it must be consistent with the proven facts, and it must flow naturally, reasonably, and logically from them.
Again, it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.
If there is a reasonable hypothesis from the proven facts consistent with the defendant's innocence, then you must find the defendant not guilty.
If the only reasonable inference you find is that the defendant is guilty of a charged crime, and that inference is established beyond reasonable doubt, then you must find the defendant guilty of that crime.
The defendant testified as he passed by the officer's location on Coffeen Street he did not hold the cell phone "up to my ear" with his right hand. He explained that he drove like that "all the time" leaning his arm on the seat's arm rest holding the cell phone in one hand up to his head "at the ready," if you will, to respond if it rang so he could respond. He stated to the officer at the time of the traffic stop he did not have a hands-free device.
The defendant offered as a rebuttal the evidence he was using a cell phone that he was not "engaged in a call" because he was neither listening to or talking to anyone at the times Officer Maney said he observed him prior to the traffic stop.
He said that as he traveled along Coffeen Street the cell phone rang, "I flicked it open to see who was calling," when I saw it was my wife with whom I was arguing with earlier, I decided not to answer the call and "I flicked it back down again." He explained that when he flicked it open the light on the phone did come on "illuminating the screen and the keypad" so when the officer testified about "his ear lit up" that would be accurate.
He said that once he initially "flicked it closed" upon realizing his wife was the caller he subsequently just before the stop by Officer Maney "I flicked it back up again. . ., the light went back on and I made sure it was my wife who had tried to call." He explained he did this by pushing a button that recalled the last number from which a call came and displayed it on the screen of the cell phone.
He stated that while he did activate the cell phone to find out who was calling and/or who had last called, he never talked to anyone.
The defendant argues that for these reasons he was not engaged in a call under VTL 1225-c(f) because he was not "talking or listening" to anyone and he was merely "holding a mobile telephone to activate, deactivate or initiate a function of such phone" (id) that is to see who was calling by reading the number displayed on the screen. The defendant at the time of the stop told Officer Maney he was aware by not using a hands-free cell phone he was violating the law, but he said nothing at that time about how he was using it to explain he was not engaged in a call by talking or listening to anyone at the time in question.
The crux of the conduct prohibited by VTL 1225-c(2)(a) is that while operating a motor vehicle the driver shall not "engage in a call" while such vehicle is in motion."
The various definitions of the terms of VTL 1225-c(2)(a), i.e., "using," "hand-held mobile telephone," "immediate proximity" all clearly define what must be observed by a law enforcement officer that the cell phone is being held in one had at or near the ear of the driver in a moving car visually to provide a reasonable suspicion that the law is being violated allowing the officer to stop the car on the statutory presumption that if all of these readily apparent signs of cell phone being used by the driver are observed then it can be presumed the driver is "engaging in a call" as defined at VTL 1225-c(1)(f) (VTL 1225-c[b]).
Of course, the officer may have direct rather than circumstantial evidence supplied by the presumption allowing an inference the driver is engaged in a call if the officer can hear the driver talking into the phone and/or observes by the actions of the driver's mouth the driver is speaking. However, absent such, the presumption at VTL 1225-c(2)(b) is necessary to support the element of the charge that the driver is "engaged in a call."
In Cusmai the rebuttal evidence offered by the driver that he was not engaged in a call was that he merely activated the cell phone to determine is there was an incoming call by viewing the screen while holding it at arm's length which would be confirmed by his cell phone records if he had supplied them as an exhibit. In Deep the rebuttal was that the only attempt to use a cell phone to engage in a call was while the driver was stopped at a red light when the vehicle was not in motion. In both cases, the Court found that based upon the driver's testimony rebutted the presumption a call was being engaged in at the time the vehicle was in motion.
In both Deep and Cusmai the Courts rejected the presumption the drivers were "engaged in a call" and the "weight of the evidence needed to overcome [that] inference" ( Rivera, supra, p. 247), "supported by this presumption" ( Virkel, supra, p. 222), sufficient for those courts, was the credibility of the drivers' denial they were engaged in a call.
In this case the driver also denied he was "engaged in a call" because he did not talk to or listen to anyone while he held the cell phone, as he merely activated the screen to see who was calling or who had called at the time the officer observed him hold the cell phone as he drove his car for his rebuttal evidence to the inference allowed by the presumption he was "engaged in a call" (VTL 1225-c[b]).
The question, then, for the Court as trier of fact is whether this evidence rebutted the presumption ". . . by tending to show that the operator was not engaged in a call" (VTL 1225-c[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 first 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 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.
The Court based upon the doctrine of falsus in uno finds that the defendant having testified falsely as to the fact he was able to read the cell phone screen while he held it to the side of his head so close as to light up his ear by his own admission will disregard the balance of the defendant's testimony as being untruthful. The Court finds that the defendant's rebuttal testimony that he was not engaged in a call when the officer saw him was a prevarication tailored to the statutory definition of "engage in a call . . . shall not include holding a mobile telephone to activate, deactivate or initiate a function of such phone" (VTL 1225-c[f]) and that he was not otherwise "talking into or listening on" (id) the cell phone.
Conclusion
The Suffolk University Law Review (2005), Vol. 39, p. 233, reviewed the problems arising from cell phone use while operating a motor vehicle and the statutes enacted to address them. This article concludes that the "rise in cellular phone use by drivers has caused a swell in accidents (id. p. 238) because ". . . the risk of accident [is] four times greater when [a] driver [is] using a cell phone" (id. p. 238). The report states that ". . . talking on a cellular phone while driving impairs the driver's ability to focus on the road to such a degree that it is the functional equivalent of driving drunk" (id. p. 238). The investigations reported show that the risk is engaging in a conversation on a cell phone while driving because the ". . . problem lay in the driver's mind and not [their] hands" (id. p. 252) being ". . . cognitive distraction . . . that cannot be eliminated by hands-free requirement" (id. p. 252) adding that ". . . dialing is the only activity proven to be safer when using hands-free technology" (id. p. 254) conduct ironically not prohibited by VTL 1225-c(1)(e) that allows ". . . the use of either hand . . . to activate, deactivate or initiate a function of such telephone" under New York law.
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[f]) while the car is in motion looking at information on the cell phone screen is not being "engaged in call" prohibited by law.
In this case, as in Deep and Cusmai, the presumption of whether the driver was "engaged in a call" while the vehicle was in motion was rebutted "by evidence tending to show" (VTL 1225-c[b]) otherwise, rested on the word of the motorist versus that of the officer.
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.
This shall serve as the judgment and order of the Court.