People v. Ullrich

159 Misc. 2d 548, 609 N.Y.S.2d 758, 1993 N.Y. Misc. LEXIS 587

Opinion

OPINION OF THE COURT

Memorandum.

Order unanimously modified on the law by denying the motion to dismiss as to the information charging defendant with underage operation of a vessel and remanding the matter for all further proceedings and, as so modified, affirmed.

Reckless operation of a vessel appears not to have been treated as a crime prior to the enactment of the present Penal Law (see, People v Gorman, 36 Misc 2d 568; cf., former Penal Law § 2). Thus, under the present Penal Law, it would be classified as a violation (Penal Law § 55.10 [3] [b]). However, even if the offense is a violation rather than a crime, the Penal Law makes the defense of infancy available to all "offenses” unless the context of the statute involved requires otherwise (Penal Law § 30.00 [3]; § 5.05 [2]). Since the definition of an "offense” includes a violation and since the context of section 45 of the Navigation Law does not require a different interpretation, the defense of infancy is available to this prosecution for reckless operation of a vessel (see, Penal Law § 10.00 [1], [3]). It is otherwise with regard to the offense of underage operation of a vessel (Navigation Law § 49 [1], [6]). This statute by its very terms is directed at infants. Thus to permit a defense of infancy would frustrate its purpose since it would preclude application of the penalties specifically provided.

DiPaola, P. J., Collins and Ingrassia, JJ., concur.