People v. Tongue , 681 NYS2d 728 ( 1998 )

OPINION OF THE COURT

James E. Morris, J.

The defendant is charged with traveling at 74 miles per hour in a 55-mile-per-hour zone on Route 590 in the Town of Brighton, Monroe County, New York. The defendant does not dispute the facts that are alleged.

At the time he was stopped, the defendant was in the New York Army National Guard, traveling in his personal vehicle from the Culver Road Armory to the Weidner Road Armory. He claims that his status as a member of the National Guard gives him immunity from prosecution under the Vehicle and Traffic Law.

As authority for the defendant’s position he cites the 1918 case Andrews v Gardiner (185 App Div 477). This case deals with arrest and service of process in civil cases and does not apply here.

Military Law § 235 grants relief from civil or criminal liability to members of the militia ordered into active service of the State. This immunity is only granted if the Governor has ordered the organized militia into active service because of invasion, disaster, insurrection, riot, breach of the peace or imminent danger thereof. (Military Law §§ 6, 7.)

There was no proof of any conditions or emergencies as set out in Military Law §§ 6 and 7. Therefore, section 235, granting relief from criminal liability, does not apply. A member of the New York Army National Guard merely driving his own vehicle from one Armory to another while on weekend duty is not exempt from prosecution under the Vehicle and Traffic Law.

The legal defense imposed by the defendant is without merit. Defendant is therefore found guilty as charged and must present himself to the court for sentencing on September 28, 1998.