AD1 order dated August 4, 2015, reversing dismissal of accusatory instrument. Decision below: 49 Misc.3d 36, 18 NYS3d 259. Fahey, J., granted leave December 16, 2015.

ISSUE PRESENTED: Whether VTL §397, prohibiting “equip[ing] a motor vehicle” with a radio receiver capable of receiving frequencies allocated for police, applies when such a device is carried in the driver’s clothing. (Assigned counsel: Seymour W. James, Jr., Legal Aid Society, Criminal Appeals Bureau, 199 Water St. NYC 10038.)

Issue before the Court: VTL 397 makes it a misdemeanor for a non-peace-officer to “equip” a motor vehicle with a device that is capable of intercepting police radio frequencies.  Does the prohibition apply to a freestanding device in the driver’s pocket?

 

Held: Yes, by the Court’s 6 to 1 vote.  This is an issue of statutory construction. Consulting various dictionaries to interpret the plain language of the statute, the majority decided the word “equip” did not imply the need for physical attachment to the vehicle.

 

CAL Observes: Although the majority states that they were interpreting the plain language of the statute, other parts of the opinion indicate that they were looking mainly to the interpretation effectuating the intent of the legislature, which was to keep police radio frequencies from being intercepted by civilians.  In her lone dissent, Judge Stein stated that the word “equip” plainly requires an attachment to the vehicle.  Although she concedes that the majority’s interpretation “arguably effectuates the general purpose” of the VTL, she also cogently notes that the statute’s ambiguity could also make it difficult for the average citizen to decide between what is criminal and what is allowed.  At least the Court wasn’t trying to decide what the meaning of the word “is” is.