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Nicolai, P.J., Tanenbaum and Lacava, Jj v. John Raffa

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS PRESENT:


January 20, 2011

NICOLAI, P.J., TANENBAUM AND LACAVA, JJ THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOHN RAFFA,
APPELLANT.

Appeal from a judgment of the District Court of Nassau County, Traffic and Parking Violations Agency (Salvatore Nicosia, J.H.O.), rendered April 28, 2009. The judgment convicted defendant, after a non-jury trial, of operating a motor vehicle using a mobile telephone.

People v Raffa (John)

Decided on January 20, 2011

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on January 20, 2011

ORDERED that the judgment of conviction is reversed, on the law, the accusatory instrument is dismissed, and the fine, if paid, is remitted.

Defendant was convicted of violating Vehicle and Traffic Law § 1225-c (2) (a) by using a hand-held amateur radio device while operating his vehicle on a public highway. 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 § 1225-c [1] [a]). 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 [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 § 1225-c (2) (a) beyond a reasonable doubt.[FN1]

Accordingly, the judgment of conviction is reversed, the accusatory instrument dismissed, and the fine, if paid, remitted.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur. Decision Date: January 20, 2011 Footnotes Footnote 1:We need not determine whether Vehicle and Traffic Law § 1225-d would prohibit the use of the type of communication device employed by defendant in this case, as the incident involved herein occurred prior to November 1, 2009, the effective date of this statute.

20110120

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