Opinion
2016–290 S CR
04-05-2018
The PEOPLE of the State of New York, Respondent, v. Andrew DEMARCO, Appellant.
Scott Lockwood, Deer Park, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Scott Lockwood, Deer Park, for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, JAMES V. BRANDS, JJ
ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine, surcharge, and administrative fee, if paid, are remitted.
The People charged defendant, in a simplified traffic information, with using a mobile telephone while operating a motor vehicle ( Vehicle and Traffic Law § 1225–c [2 ] [a] ). At a nonjury trial, a police officer testified that, upon reaching the scene of a two-car accident, which he did not witness, he was informed by defendant, the operator of one of the vehicles involved, that his "phone rang and [he] picked it up" and "[w]hen [he] looked up, [he] hit the truck." Defendant testified that he did not manually grasp the phone but attempted merely to activate a "decline call" function on the steering wheel. Citing defendant's admission to the investigating officer, the court convicted defendant of the offense.
On appeal, defendant argues, among other things, that the verdict was against the weight of the evidence. We agree.
In People v. Wells (57 Misc 3d 21 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ), this court stated:
" 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 is in motion ....’ For purposes of the statute, ‘using’ a mobile telephone means holding a mobile telephone to, or in the immediate proximity of, the user's ear ( Vehicle and Traffic Law § 1225–c [1 ] [c] [i] ), and ‘engage in a call’ means ‘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 § 1225–c [1 ] [f] ).... The statute ... is not violated merely by holding a mobile telephone to, or in the immediate proximity of, one's ear (see Vehicle and Traffic Law § 1225–c [1 ] [c] [i] ); rather, the driver of the vehicle must also actually be engaged in a call, as defined in Vehicle and Traffic Law § 1225–c (1) (f), while the vehicle is in motion (see Vehicle and Traffic Law § 1225–c [2 ] [a] )" ( id. at 22 ; see also People v. Ferguson , 56 Misc 3d 140[A], 2017 NY Slip Op 51097[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ).
The People's evidence established, at best, that, while he had been operating his vehicle, defendant had received an incoming call and retrieved his mobile phone. There was neither an observation nor an admission that defendant had been "engage[d] in a call" ( Vehicle and Traffic Law § 1225–c [1 ] [f] ), nor even that defendant had held his mobile phone in the immediate proximity of his ear, which fact would permit a presumption that defendant had been engaged in a call (see Vehicle and Traffic Law § 1225–c [2 ] [b]; Matter of Smilow v. New York State Dept. of Motor Vehs. , 95 AD3d 1023, 1024 [2012] ). There was no rebuttal to defendant's testimony that he had not been engaged in a call (see People v. Wells , 57 Misc 3d at 23 ). Even were we to discount defendant's denial that he manually "picked up" his phone and his claim that, instead, he attempted only remotely to disengage the call, the statute is not violated by merely picking up a phone in response to a call or by "holding a mobile telephone to activate, deactivate or initiate a function of such telephone" ( Vehicle and Traffic Law § 1225–c [1 ] [f] ).
In light of the foregoing, we need not address defendant's remaining contentions.
Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the fine, surcharge, and administrative fee, if paid, are remitted.
MARANO, P.J., and GARGUILO, J., concur.
BRANDS, J., taking no part.