People v. Church , 563 N.Y.S.2d 620 ( 1990 )

OPINION OF THE COURT

Carl S. Wolfson, J.

At the conclusion of the People’s case, the defendant moves to dismiss the charge of a violation of section 165.05 of the Penal Law, unauthorized use of a motor vehicle. This violation concerns an alleged unauthorized use of an ATV, or all terrain vehicle.

It is urged upon the court that section 165.05 of the Penal Law, which defines unauthorized use of a motor vehicle in the third degree does not apply to all terrain vehicles. The instant defendants are charged with criminal possession of stolen property in the fifth degree in violation of section 165.40 of the Penal Law, and unauthorized use of a motor vehicle in violation of section 165.05 of the Penal Law.

The testimony reveals that the defendants herein were in possession of two ATV’s which had been recently stolen from Barry Ortiz. The basis of the motion is the defendants’ contention that ATV’s are not included in the crime as defined under section 165.05 of the Penal Law.

Section 165.05 of the Penal Law concerns a “vehicle” with no further explanation of what defines "a vehicle”. The court must look to section 10.00 (14) of the Penal Law which defines a vehicle as a “ ’motor vehicle’, ’trailer’, or ’semi-trailer’ as defined in the vehicle and traffic law”. Section 125 of the Vehicle and Traffic Law defines motor vehicles. That law specifically excludes from the definition of motor vehicle all terrain vehicles.

Reading sections 165.05 and 10.00 (14) of the Penal Law, and section 125 of the Vehicle and Traffic Law together, all terrain vehicles do not come within the definition of vehicles within the unauthorized use section of the Penal Law. It therefore follows that all terrain vehicles are not covered by section 165.05 of the Penal Law. Apparently the Legislature is aware of this problem since by Laws of 1990 (ch 452), effective November 1, 1990, all terrain vehicles were specifically added to the vehicles covered by the charge of vehicular assault in the second degree and vehicular manslaughter in the second degree, PRHPL 25.24 (1) and Penal Law §§ 120.03 and 125.12.

It is also apparent that legislation is required if it is intended that all terrain vehicles should be the subject of the unauthorized use section. The court is therefore constrained to dismiss the charge of section 165.05 of the Penal Law, and will not present that charge to the jury for consideration.