BRADLEY D. MARBLE, LOCKPORT TOWN PROSECUTOR, FOR THE PEOPLE
ALYSSA RIEXINGER, PRO SE
Leonard Tilney, J.
The case was a Non-Jury Trial held May 29, 2013 in which two witnesses were heard. The People presented Trooper Timothy Waild who has been employed by the New York State Police since 1987. He was assigned road patrol March 14, 2013 and stopped the Defendant (RIEXINGER) charging her with a violation of VTL §1225-d — use of portable electronic device. He was parked at the corner of Transit and Robinson Roads in the Town of Lockport observing traffic. As the Defendant drover her car past him she was holding a cell phone. He followed her and stopped her for the aforesaid violation. He spoke with Riexinger and she advised him she was checking the time. Riexinger showed Waild the cell phone and he issued her a ticket. Waild identified Riexinger in the courtroom as the person using the cell phone.
The Defendant then took the stand on her own behalf. She was on a half hour break from work and the clock in her car was broken. She checked her cell phone for the correct time. She was not texting or communicating on the cell phone. In fact, her exhibits, "A" (cell phone) and "B" (text) from her phone carrier showed no activity either texting or phone calls for the date and time of the ticket. She was unaware she was breaking any law as she was only observing the time. Although she had the cell phone in her hand, no communication was had.
VEHICLE AND TRAFFIC LAW § 1225-d
2(a)"Portable electronic device" shall mean any hand-held mobile telephone, as defined by subdivision one of section twelve hundred twenty-five-c of this article, personal digital assistant (PDA), handheld device with mobile data access, laptop computer, pager, broadband personal communication device, two-way messaging device, electronic game, or portable computing device.
2(b)"Using" shall mean holding a portable electronic device while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving email, text messages, or other electronic data.
4A person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle is presumed to be using such device. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not using the device within the meaning of this section.
POSITION OF THE PARTIES
People maintain the presumption under VTL §1225-d (4) and, Defendant's own testimony shows she was using a portable electronic device while the car was moving.
Defendant states quite frankly she was not using her cell phone to text or communicate with anyone but was only checking the ...