New York Auto Sale Goes Nuclear (and the Fallout), Part 3

September 2, 2011

“which brought pains thousandfold…” Homer, The Iliad

In this series of entries, we’ve been telling the story of a car sale gone terribly wrong. (It ended not only in hard feelings, but in the total destruction of the vehicle.) Part 1 of our series laid out the scenario; Part 2 discussed some legal problems faced by the would-be buyer. This installment addresses the immediate legal consequences to the seller, and in our next entry, we’ll look at the administrative repercussions for both parties. To protect everyone’s identity, we’ve named the seller and buyer ‘Mr. X’ and ‘Mr. Y’, respectively.

The story, in a nutshell, is that Mr. X’s car had been taken and smashed by Mr. Y, a friend with a short fuse and a lead foot. Mr. Y had been charged with a couple of moving violations (unreasonable speed and failure to keep right), as well as driving without insurance and driving an unregistered vehicle. He also faced a single misdemeanor: driving with a suspended registration (Vehicle and Traffic Law Section 512).

The investigating officer declined, over Mr. X’s objection, to charge Mr. Y with either theft or unauthorized use of the vehicle. He chose instead to cite Mr. X for permitting Mr. Y to drive his car without insurance and without license plates!

And even then, the officer wasn’t done with Mr. X.

He also charged Mr. X with operating “without giving proof when proof required” (Vehicle and Traffic Law Section 355). Our officer may have seen 355 as the ‘yin’ to 512’s ‘yang’, because it seemed to apply to situations where an owner let someone else drive an unregistered vehicle. (Mr. X couldn’t be charged with violating Section 512. Driving on a suspended registration doesn’t apply to the owner of a vehicle, per se: owner or not, It applies only to the driver.)

“Operating without proof” is a misdemeanor defined in Article 7 of the Vehicle and Traffic Law; Article 7 is a holdover from an era before New York’s Motor Vehicle Financial Security Act, which requires us all to have auto insurance.

We don’t know of a single judicial opinion that cites Section 355, and the statute, which hasn’t been amended since 1960, is clearly something of a fossil. It says, for example, that a guilty defendant “shall be subject to the penalties provided by section five hundred eleven….” But Vehicle and Traffic Law Section 511 doesn’t appear to have existed in its current form in 1960.

The current incarnation of 511 - which defines aggravated unlicensed operation (AUO) - was added in 1985, and has been amended several times since. Section 511 now lays out three levels of offense, one of which is a felony and two of which are misdemeanors. Punishing a misdemeanant as a felon is presumably out; but there are two different levels of punishment set out for misdemeanor-level AUO, based on criteria specific to that crime. Which one applies to the car owner who’s violated Section 355?

Anyway, given its context in Article 7, it’s tempting to argue that 355 applies only to people whose registrations have been suspended because of ‘certain convictions’ or ‘failure to pay certain judgments’: those people are the chief targets of Article 7 - and Mr. X, incidentally, wasn’t one of them. The statute’s language, however, contains no such limitations: it could apply to anyone whose vehicle registration has been suspended or revoked and who can’t get the vehicle registered again without proof of insurance (in other words, everyone whose registration has been suspended or revoked); it forbids them to knowingly permit any motor vehicles owned by them to be driven by anyone else.

In the end, though, resolving the matter didn’t take a lot of closely-reasoned legal argument. By the time Mr. X was due to appear in court, Mr. Y had accepted responsibility for the whole mess and, because of this, the prosecutor was already inclined to be cooperative. Mr. X was offered adjournments in contemplation of dismissal on all three charges (under Section 170.55 of the Criminal Procedure Law - we’ll be discussing this provision in a later entry).

There was still the court to be dealt with, however. A plea agreement means nothing without the judge’s signature, and the judge presiding over the matter simply refused to accept the overall disposition if Mr. X didn’t plead guilty to something. Mr. X was aware that it would be hard to convict him of the pending charges with Mr. Y corroborating his story. But to put the ordeal behind him, he gave in and, notwithstanding the prosecutor’s offer, he did plead guilty to one of the traffic infractions, permitting operation without license plates (Vehicle and Traffic Law Section 402).

Mr. X was assessed $160 in fines and surcharges, but the misdemeanor charge and the insurance-related charge were, if not gone, on their way out. In addition, two old tickets for equipment violations were rooted out by a second judge and dealt with on the spot, heading off a scofflaw suspension. Mr. Y had even promised to pay for the car (a promise he kept). An hour after he had walked into the courtroom, Mr. X walked out and the whole affair was over - or so he thought.

Next time: and what about DMV?

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