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People v. Demperio

86 N.Y.2d 549 Court N.Y. Decision date 1995-11-29 English

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p. 549
[658 NE2d 718, 634 NYS2d 672]
The People of the State of New York, Appellant, v Michael J. Demperio, Respondent.
Argued October 24, 1995;
decided November 29, 1995
p. 550
POINTS OF COUNSEL
William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (John B. LaParo, James P. Maxwell and Gordon J. Cuffy of counsel), for appellant.
I. Vehicle and Traffic Law § 1193 (2) (b) (3) is not unconstitutionally vague. (People v Byron, 11 NY2d 64 ; Matter of McGee v Korman, 70 NY2d 225 ; Wiggins v Town of Somers, 4 NY2d 215 ; Matter of Pratt v Melton, 72 AD2d 887 , 51 NY2d 837 ; People v Cruz, 48 NY2d 419 ; People v New York Trap Rock Corp., 57 NY2d 371 ; People v Watson, 162 AD2d 1015 ; Matter of Hauptman v New York State Dept. of Motor Vehicles, 158 AD2d 600 .) II. The lower court erred by failing to notify the Attorney-General before ruling on the constitutionality of Vehicle and Traffic Law § 1193 (2) (b) (3). (Matter of McGee v Korman, 70 NY2d 225 ; Lanz v Feola, 181 AD2d 1053 ; Jefferds v Ellis, 122 AD2d 595 , 132 AD2d 321 , 75 NY2d 708 .)
Respondent, precluded.
Dennis C. Vacco, Attorney-General, Albany (John McConnell, Victoria A. Graffeo and Peter H. Schiff of counsel), in his statutory capacity under Executive Law § 71.
The County Court erroneously held that Vehicle and Traffic Law § 1193 (2) (b) (3) is unconstitutionally vague. (People v Bright, 11 NY2d 376 ; Defiance Milk Prods. Co. v Du Mond, 309 NY 537 ; People v Epton, 19 NY2d 496 , 390 US 29 ; Matter of Van Berkel v Power, 16 NY2d 37 ; People v Shakun, 251 NY 107 ; People v Mobil Oil Corp., 48 NY2d 192 ; People v Tanner, 128 NY 416 ; People v Evans, 79 Misc 2d 131 ; People v Del Principe, 31 Misc 2d 428 .)

OPINION OF THE COURT

This appeal calls into question the constitutionality of Vehicle and Traffic Law § 1193 (2) (b) (3). Considering the presumption of constitutionality together with the clear language of the subsection, we reverse County Court’s order declaring the statute unconstitutionally vague.

Defendant was stopped while driving his car in the Town of Geddes on September 19, 1992, and charged with aggravated unlicensed operation of a motor vehicle in the second degree

p. 551
under Vehicle and Traffic Law § 511 (2) (a). That statute is violated when persons operate a motor vehicle on a public highway while knowing or having reason to know that their license is suspended, revoked or otherwise withdrawn because of a previous conviction of driving under the influence of alcohol or drugs. Defendant had been convicted of driving while intoxicated on September 18, 1990, and, as he had also been convicted the prior year of driving while ability impaired, his license was revoked under the recidivist statute (Vehicle and Traffic Law § 1193 [2] [b] [3]), which prescribes under the heading "Revocations” that a license shall be revoked for the following minimum period:
"(3) Driving while intoxicated or while ability impaired by drugs; prior offense. One year, where the holder is convicted of [driving while under the influence of alcohol or drugs] within 10 years of a conviction for [driving while under the influence of alcohol or drugs]” (Vehicle and Traffic Law § 1193 [2] [b] [3], citing Vehicle and Traffic Law § 1192).

On April 17, 1991, defendant’s license was revoked for a minimum of one year, and he had made no application to have it reinstated at the time in issue.

Defendant argued, and both Town Court and County Court agreed, that Vehicle and Traffic Law § 1193 (2) (b) (3) is unconstitutionally vague in that it does not inform violators that they must make a new application in order to have a revoked license reinstated.

Combining the presumption of constitutionality that attaches to enactments of a coequal branch of government (People v Bright, 71 NY2d 376 , 382) with the clarity of the subsection as a whole, we conclude that the lower courts erred. The word "revoke” — meaning to annul, void or cancel— is commonly understood as having a core element of permanence. Moreover, any possible doubt as to the meaning of the word as used in Vehicle and Traffic Law § 1193 (2) (b) (3) would be laid to rest by the immediately following paragraph (not cited in the opinion of either lower court):

"(c) Reissuance of licenses; restrictions. (1) Except as otherwise provided in this paragraph, where a license is revoked pursuant to paragraph (b) of this subdivision, no new license shall be issued after the expiration of the minimum period specified in such paragraph, except in the discretion of the commissioner.”
p. 552
This statute alone[1] gave defendant reason to know that upon revocation of his license, a new license application was required.

Accordingly, the order of County Court should be reversed, the accusatory instrument reinstated, and the case remitted to the Justice Court for further proceedings on the accusatory instrument.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in Per Curiam opinion. Order reversed, etc.

* Additionally, as the Attorney-General points out, the Department of Motor Vehicles sends the following written notices (form C-40) to persons whose drivers’ licenses have been suspended or revoked because of alcohol-related offenses: "If your license was revoked, you must apply to the Department of Motor Vehicles for a new license.”

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