People v. Marcus , 19 A.D.2d 813 ( 1963 )

Judgment convicting defendant of the crime of operating a motor vehicle on a public highway without a license, affirmed. We are constrained to hold that the proof shows a technical violation of the statute. The record establishes the defendant, unlicensed therefor, was operating a motor vehicle at an extremely moderate rate over a sidewalk adjacent to a gasoline station. Subdivision 4 of section 501 of the Vehicle and Traffic Law provides: “ a. No person shall operate or drive a motor vehicle upon a public highway of this state unless he is duly licensed under this chapter”. Subdivision 9 thereof states: “ The violation of any of the provisions of this section shall constitute a misdemeanor ”, Section 134 of said statute defines public highway as: “ Any highway, road, street, avenue, alley, public place, public driveway or any other public way.” Section 144 defines sidewalk as the portion of the “ street ” between the curb and the property lines. We therefore hold a sidewalk to be within the ambit of a street as defined in section 134. Concur — Botein, P. J., Breitel and McNally, JJ.; Stevens and Steuer, JJ., dissent and vote to reverse in the following memorandum: We dissent. There was no adequate proof that the place where the automobile was being operated was in fact part of the public highway — sidewalk or otherwise. Furthermore, there is a reasonable doubt as to whether the operation in question was such as the statute contemplates. The judgment of conviction should he reversed and the charge dismissed.