People v. Bozak — 29 Misc.3d 711

Majority

p. 711

[907 NYS2d 632]

The People of the State of New York, Plaintiff, v Stephen G. Bozak, Defendant.

City Court of Troy,

September 8, 2010

APPEARANCES OF COUNSEL

D. Jeremy Rase, Esperance, for defendant. John R Hicks, Corporation Counsel, Troy CMatthew Foley of counsel), for plaintiff.

OPINION OF THE COURT

Defendant seeks dismissal of a traffic ticket which alleges “Talking on Mobile Device While Driving” in violation of section 1225-c (2) (a) of the Vehicle and Traffic Law on May 30, 2010. Defendant argues that his use of a handheld amateur

p. 712

radio does not fit the definition of a mobile telephone and as such the present charge should be dismissed. The People have not submitted a response in opposition.

The Vehicle and Traffic Law defines “Mobile telephone” as 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 “two-way real time voice telecommunications 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 ” (Vehicle and Traffic Law § 1225-c [1] [b] [emphasis added]). A review of 47 CFR 20.3 reveals that Citizens Band Radio Service is defined under private mobile radio service, not commercial mobile radio service. Therefore, the court finds that the use of an amateur radio device does not fit the definition of a mobile telephone as defined under the Vehicle and Traffic Law and grants the defendant’s motion to dismiss.