This appeal comes from the Nassau County Traffic and Parking Violations Agency (“TPVA”). The Defendant was charged with using a mobile telephone while operating a motor vehicle (VTL Section 1225-c(2)(a)). A non jury trial was held at the Nassau County TPVA and the police officer testified that the defendant was holding her cellular phone in her hand, next to her face, and driving the car. At this point, it is incumbent upon the Defendant to contest these assertions by the police officer. The Court here notes that the defendant “had exculpatory evidence to present” but the Court did not allow her to present her case. A verdict was rendered and the defendant, who appeared to be confused, continued to protest that she had exculpatory evidence, evidence that tends to prove her innocence, that she wanted to present to the Court. The defendant was convicted. This appeal follows as the defendant contests that she was deprived of her fundamental constitutional right to a fair trial – again, this is due to a VTL violation:
Vehicle and Traffic Law §1225-c (2) (a) provides that “no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion….” For purposes of the statute, “using” a mobile telephone means holding a mobile telephone to, or in the immediate proximity of, the user’s ear (Vehicle and Traffic Law §1225-c  [c] [i]), and “engage in a call” means “talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone” (Vehicle and Traffic Law §1225-c  [f]). Moreover, “[a]n operator of any motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section…. [and] [t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call” (Vehicle and Traffic Law §1225-c  [b]).
Pp. 2-3 (external quotation marks omitted and internal citations preserved). The Appellate Term states that the People have the burden of establishing the Defendant utilized the cellular phone while driving. Once the people’s burden is met, here the officer testifying as to the cellular phone use while the vehicle was in motion, the defendant should have had the opportunity to rebut the presumption made by the people. more