Alpert v. Macduff

¶1The 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 *327registrations. In this proceeding under article 78 of the Civil Practice Act the petitioner seeks to annul the respondent’s determination.

¶2All 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 information1 attached to the petition, the accuracy of which is not denied.

¶3Paragraph (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 ”.

¶4The 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.”

¶5Annexed to the respondent’s answer are:

¶6A 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;

¶7*328The petitioner’s plea of guilty;

¶8The report of the petitioner’s conviction made by the same assistant court clerk and filed with the respondent;

¶9The notice of revocation of the petitioner’s driver’s license by the North Carolina Department of Motor Vehicles filed with the respondent;

¶10The respondent’s revocation of the petitioner’s license and suspension of the respondent’s certificates of registration.

¶11The certified excerpt of the judgment of conviction appears in full below with emphasis supplied:

¶12North Carolina,

¶13In the Recorders Court

¶14Halifax County, B-424

¶15February 24, 1953

¶16State v. Hyman Alpert

¶17North Carolina, Halifax County

¶18D. W. D.

¶19Plea: Guilty

¶20The judgment of the court is that the defendant pay a fine of $100.00 and costs.

¶21I, 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.

¶22In 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.

¶23Ann B. Williams

¶24Assistant Clerk Superior Court

¶25Ex-Officio Clerk Recorders Court

¶26The 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. ’ ’

¶27The subsequent report of the petitioner’s conviction2, although *329signed by the assistant court clerk, follows neither the information {supra) nor the petitioner’s plea of guilty (the pertinent portion of which was quoted supra) nor the transcript of the court proceedings {supra) but negligently and erroneously states “ CONVICTED OF Driving while Drunk ” and the subsequent notice of the revocation of the petitioner’s driver’s license by the North Carolina Department of Motor Vehicles3 likewise fails to follow the information or the plea of guilty or the transcript of the court proceedings but states “ Convicted of Driving Drunk ”.

¶28*330The revocation of the petitioner’s driver’s license by the respondent4 substitutes for the language of the information and for the language of the petitioner’s plea of guilty and for the certified facts of the North Carolina court proceeding the statement: “ Convicted … for operating a motor vehicle while under the influence of intoxicating liquor.” The suspension of the petitioner’s certificates of registration by the respondent likewise states: “Convicted … for operating a motor vehicle while under the influence of intoxicating liquor. ” It also disregards the certified excerpt of the judgment of conviction which specifically states that the charge to which the plea was entered was “ operating a motor vehicle upon the public highways of North Carolina under the influence of some intoxicating beverage or a narcotic ”. It likewise disregards the information and the plea of guilty to the information.

¶29The 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 *331(Maine Rev; Stat. [1944], eh. 19, § 121), the pertinent portions of which were: " Whoever shall operate or attempt to operate a motor vehicle upon any way, or in any other place when intoxicated or at all under the influence of intoxicating liquor or drugs, upon conviction, shall be punished by a fine of not less' than $100, nor moré than $1,000, or by imprisonment for not less than 30 days, nor more than 11 months, or by both süch fine arid imprisonmént. … Evidence that there was, at that time, 7/100%, or less, by weight Of alcohol in his blood, is prima facie évidence that thé defendarit was not under the influence of intoxicating liquor withiri the méáriing of this séction. Evidence that there was* át that time, from 7/100% to 15/100% by weight of alcohol iri his blood is relevant evidéricé btit it is not to be given prima facie effect in indicating whether Or not the defendant whs under the influence Of intoxicating liquor within the meaning of this section. Evidence that there Was, at thé time, 15/100%, Or more, by weight of alcohol in his blood, is prima facie evidence that the defendant was under the influence of intoxicating liquor Within the meaning' Of this seCtiori.”

¶30Ari 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.”

¶31No 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).

¶32Moreover,- 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 *332conviction was not for driving ‘ while under the influence of intoxicating liquor ’ within the meaning of paragraph (b) of subdivision 2 of section 71 of the Vehicle and .Traffic Law of this State. The Maine statute provides (1) that evidence that the driver had 7/100ths% or less by weight of liquor in his blood is prima facie evidence that he was not under the influence of intoxicating liquor within the meaning of the section, and (2) that evidence that he had 7/100ths% to 15/100ths% by weight of liquor in his blood, though relevant, does not establish prima facie that the driver was under the influence of intoxicating liquor within the meaning of the section. (Maine Bev. Stat. [1944], ch. 19, § 121.) It is thus clear that the words ‘ at all ’ employed in the Maine statute are not to be given literal effect.”

¶33The 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.

¶34But 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 ”.

¶35The 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.)

¶36The 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 *333conviction submitted by the respondent and annexed to and made a part of Ms answer (supra).

¶37The motion to annul the respondent’s determination revolting the petitioner’s license and certificates of registration is granted. Submit order.