204 Misc. 326 | N.Y. Sup. Ct. | 1953
The petitioner was convicted in North Carolina of an offense involving operation of an automobile. Because of this conviction the Commissioner of Motor Vehicles of this State revoked his operator’s license "and suspended his vehicle
All of the facts mentioned in this opinion are taken from the respondent’s answer with the exception of the North Carolina statute, of which judicial notice may be taken (Pfleuger v. Pfleuger, 304 N. Y. 148), and with the further exception of the information
Paragraph (b) of subdivision 2 of section 71 of the Vehicle and Traffic Law makes revocation of a driver’s license mandatory and permits suspension of his certificates of registration if he is convicted of ‘ ‘ an offense consisting of operating a motor vehicle or motor cycle while under the influence of intoxicating liquor where the conviction was had outside this state ”.
The North Carolina statute, under which the petitioner was convicted, reads as follows (N. C. Gren. Stat., § 20-138): “ § 20-138. Persons under the influence of intoxicating liquor or narcotic drugs.— It shall be unlawful and punishable, as provided in § 20-179, for any person, whether licensed or not, who is a habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon the highways within this state.”
Annexed to the respondent’s answer are:
A certified excerpt of the judgment of conviction duly certified by the assistant clerk of the Superior Court of Halifax County, North Carolina, a court of record;
The report of the petitioner’s conviction made by the same assistant court clerk and filed with the respondent;
The notice of revocation of the petitioner’s driver’s license by the North Carolina Department of Motor Vehicles filed with the respondent;
The respondent’s revocation of the petitioner’s license and suspension of the respondent’s certificates of registration.
The certified excerpt of the judgment of conviction appears in full below with emphasis supplied:
North Carolina,
In the Recorders Court
Halifax County, B-424
February 24, 1953
State v. Hyman Alpert
North Carolina, Halifax County
D. W. D.
Plea: Guilty
The judgment of the court is that the defendant pay a fine of $100.00 and costs.
I, Ann B. Williams, Assistant Clerk of the Superior Court for the County of Halifax, State of North Carolina, which court is a court of record, having an official seal, do hereby certify that the foregoing excerpt contains a full, true and perfect copy of the plea and judgment of the court in that matter entitled ‘ State vs Hyman Alpert ’ on a charge of operating a motor vehicle upon the public highways of North Carolina under the influence of some intoxicating beverage or a narcotic as the same appears of record in this office in Recorders Court Minute Book 5, page 433.
In Witness Whereof, I have hereunto set my hand and affixed the official seal of said court at Halifax, on this the 17th day of April, 1953.
Ann B. Williams
Assistant Clerk Superior Court
Ex-Officio Clerk Recorders Court
The petitioner’s plea of guilty states: “ Your deponent hereby states that he pleads guilty to the charge and desires to enter a plea of guilty as set forth in the information submitted by A. W. Kilpatrick on the 29th day of January, 1953, and which is on file in this Court. ’ ’
The subsequent report of the petitioner’s conviction
The respondent relies on Matter of Howard v. Fletcher (199 Misc. 521, affd. 278 App. Div. 799). The petitioner Howard was charged with violating a statute of the State of Maine
Ari examination of the record on appeal discloses that the petitioner pleaded not guilty and that a trial was had Which resulted in a conviction. The petitioner’s offense was treated as a conviction solely of drivirig While Under the influence of intoxicating liquor. As á matter of fact Mr. Justice Boteih stated at páge 522: “Petitioner in this proceeding was convicted in the State of Maine Of drivirig while under the influence of intoxicating liquor.”
No extended discussion is required to demonstrate that a convictiori outside the State must be for the same offense delineated in the New York statute. Prior to 1933, ctihViction for driving Outside the State While intoxicated made revocation of a license mandatory. But it Was held that a Massachusetts conviction of operating a motor vehicle While under' the itifltteriCe of intoxicating liquor did not coristitute a convictiori of " drivirig * * * While iritoxicated ” withiri the meaning of section 71 Of the Vehicle and Traffic LáW as it then existed (Matter of Cashion v. Harnett, 234 App. Div. 332).
Moreover,- at pages 523-524 Of Matter of Howard v. Fletcher (199 Misc. 521, supra), it was stated: “The Maine statute makes it a crime tb Operate a motor Vehicle if the driver is ‘ at all under the influence of intoxicating liquor ’ (Maine Rev. Stat. [1944], ch. 19, § 121; émphásis supplied). This does riot, in the court’s Opiriiori, justify a holding that the petitioner’s
The inference is ineluctable that, if the words “at all ” in the Maine statute had not been so modified and limited as to be without their natural significance, the New York statute would not have been satisfied by the Maine conviction.
But the petitioner in this proceeding was not, as the court reported in the State of Maine case, convicted “ of driving while under the influence of intoxicating liquor.” He was specifically charged with, pleaded guilty to and in haec verba was convicted disjunctively of operating a motor vehicle “ under the influence of some intoxicating beverage or a narcotic ”.
The Legislature has not yet seen fit to interpose its interdiction to driving while under the influence of narcotics. “ The court may not substitute its views on the subject for those of the Legislature.” (Matter of Howard v. Fletcher, 199 Misc. 521, 523, supra.) Even where, quite unlike the situation here, inequities exist, the law nonetheless means what it says. “ An argument for a more equitable construction of a statute does not make out a case for a court. Judges have repeatedly advised administrative officers that they ought to read the statutes which govern their powers and policies and to follow what they read.” (Matter of Barbuto v. Moore, 279 App. Div. 259, 263.) “ Inequities may be found in the present statute, but they must be dealt with by the Legislature, not by the courts.” (Matter of Rosenkranz v. Conway, 281 App. Div. 727, 728.)
The issue is not what the petitioner did but of what he was convicted. The report of the North Carolina Department of Motor Vehicles reciting “ Convicted of Driving Drunk ” is of no value as evidence since it is contradicted by the record of
The motion to annul the respondent’s determination revolting the petitioner’s license and certificates of registration is granted. Submit order.
State of North Carolina State vs. Hyman Alpert 98 Hasbrouck Ave. Kingston, N. Y. Defendant
Halifax County
Weldon Township
Justice’s Court
- Before
L. C. Barrow, Jr.
- j
J. P.
, W-M age 55
NY9590052
Criminal Action
A. W. Kilpatrick, being duly sworn, complains and says that at and in the said County of Weldon, Township, on or about the 29 day of Jan. 1953, Hyman Alpert did unlawfully, wilfully Operate a motor vehicle upon the public highways of North Carolina under the influence of some intoxicating beverage or a narcotic contrary to the form of the statute, and against the peace and dignity of the State.
Subscribed and sworn to before me this 29 day of Jan. 1953.
L. C. Barrow, Jb. Justice of the Peace.
A. W. Kilpatrick
N. C. Department of Motor Vehicles State Highway Patrol
Copy
Report of Convictions for Violations of Motor Vehicle Laws
1. Name in Full Hyman Alpert
2. Driver's License Number N. Y. 590052 Docket Number B-424
3. Age 55 Race White Sex Male
4. Street Address 98 Hasbrouck Avenue City or
6. Convicted of Driving while Drunk
MPH
7. Date of Offense 1-29-53 Date of Conviction 2-24-53
8. Prosecuting Witness A. W. Kilpatrick
9. Is License, Certificate Attached? No
10. Judgment in Pull Pine $100.00 and costs
11. Court Recorder’s Ct., Town Halifax, N. C.
12. County Halifax Date of This Report 2-25-53
Certified by
Signed Ann B. Williams
Ass’t Clerk of Court
Mail to Department of Motor Vehicles State Highway Patrol, Raleigh, North Carolina
North Carolina Department of Motor Vehicles State Highway Patrol Raleigh March 9, 1953
Official Notice and Record of Revocation of License Name of Licensee Hyman Alpert
Address of Licensee 98 Hasbrouck Avenue, Kingston, New York Driver’s License Number N. Y. 590052 (55 w m)
Date of Revocation February 24, 1953
You may apply for a new license Pebiuary 24, 1954 provided you have complied with the Safety Responsibility Act.
Convicted of Driving Drunk
Date of Conviction February 24, 1953
Name of Court Recorder’s Ct.,
Location of Court Halifax, North Carolina
The above named person will take notice that the law forbids said person to drive a motor vehicle upon the highways of the State during the period of revocation.
N. C .Department of Motor Vehicles
W. B. Lentz
W. B. Lentz, Colonel
Commanding
State Highway Patrol
State of New York
Department of Taxation and Finance Bureau of Motor Vehicles Suspension or Revocation of License or Certificate of Registration
MVB
Case No. 3-35454
Driver’s License 7436209
Number & any current
Certificate of Registration No.
Order Number A 304752
Dated 3/27/53
In the name of the person below is hereby Revoked.
Cause : Convicted on 2/24/53 at Recorder’s Court, Halifax, N. C. — for operating a motor vehicle while under the influence of intoxicating liquor.
Financial Responsibility Required Pursuant to Section 94a of the Vehicle and Traffic Law It is directed that the License Be Surrendered Immediately Upon Receipt of This Notice to the Commissioner of Motor Vehicles at his office at 504 Central Avenue, Albany, N. Y.
Return This Notice With Suspended Items Hyman Alpert (63)
98 Hasbrouck Avenue
James R. Macduff
Kingston, N. Y.
Commissioner of Motor Vehicles
Notice: Failure of the holder of the license card, registration certificate, oi number plates, to deliver the same as herein directed is a Misdemeanor.
HBC :MKB
2. (Copy to Files)
