A Need For Speed = Justification

The following are a series of Memorandums of Law (Court Documents) which illustrate and teach New York state's Law of Justification with regard to the citizen's legal right to exceed the posted speed limit under emergency circumstances.  [Note:  In New York state it is generally not lawful to exceed the posted speed limit even while passing a slower car ahead of you.] 
 
The below Memorandums (particularly the Draft Appellate Brief copied at the bottom) outline the availability of the Justification Defense to violations of the Vehicle and Traffic Law of New York.
[For a more general description of the "Choice of Evils" Justification Defense (in all states), see the end of "While Leaving Ground Zero" at  http://www.federalobserver.com/archive.php?aid=4108 or www.billstclair.com/ferran  ]
_________________________
 
The Emergency Circumstances that arose while the Defendant was lawfully passing a car in this particular speeding case, and the statute which codified the Defendant's legal right to exceed the speeding limit under those emergency circumstances, are set forth in the "Motion in Limine" (copied immediately below).   The Defendant never denied that (after seeing an oncoming car) he floored the accelerator pedal and eventually exceeded the speed limit while passing, and sought a ruling that under the claimed facts and emergency circumstances, if proved at trial, he would be found not guilty "as a matter of law."  If the motion had been decided before the trial, the District Attorney's office (having access to the Officer who wrote the ticket) would have had an incentive to Either prepare the Officer to commit perjury at trial, or dismiss the charge on its own motion before a trial.  The Defendant consented to any hopefully resulting motion to dismiss which District Attorney might make, but was not in a position to make a motion to dismiss of his own.
 
Next (below) is a Pretrial Memorandum of Law including a quotation from a Decision by New York State's Highest Court holding that "speeding" is "conduct" which can be legally "justified" under emergency circumstances.
 
Last (below) is a Draft of an Appellate Brief being prepared for the pending appeal from the Judgment of conviction that resulted from the Town Justice's categorical refusal to acknowledge that a violation of the "Vehicle and Traffic Law" can be Justified by any provision in the Article of the "Penal Law" which codifies the state's Law of "Justification."
 
Feel free to Distribute, use, cut and paste these writings.  A Finished Appellate Brief has not yet been formally submitted in Appellate (County) Court.  If you have any comments or criticisms please contact the author, Mark R. Ferran BSEE scl JD mcl at Counselier@aol.com
 
The documents (copied in HTML below) are also available in MS word format

Motion in Limine (MS word): Click Here

Memorandum of Law (MS word): Click Here

Appellate Brief Draft (MS word): Click Here

See the author's other Legal Writings at www.billstclair.com/ferran   

______________________________________________________________________________
 
______________________________MOTION IN LIMINE ________________________________

STATE OF NEW YORK COUNTY OF MONROE

CLARKSON CITY COURT CITY OF CLARKSON

__________________________________

THE PEOPLE OF THE STATE OF NEW YORK

-v.s.-

Mark R. Ferran

__________________________________

Notice of Appearance & Motion In Limine

For A Determination as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.

_____________________________________________________________________________

1. Defendant Mark R. Ferran hereby appears pro se herein.

  1. Pursuant to New York State Penal Law Section 35.05(2) [ http://assembly.state.ny.us/leg/?cl=82&a=12 ], Defendant herein seeks a Determination, as a matter of law, whether the claimed facts and circumstances would, if established, constitute a defense to the Offense charged, (viz. Vehicle and Traffic Law sec. 1180(D) [ http://assembly.state.ny.us/leg/?cl=128&a=54 ] ).
  2. The claimed facts and circumstances are as follows: My Girlfriend and I were visiting/touring the Rochester area, and we were taking a Day-trip to Niagara Falls. We were not familiar with the terrain of the highway (Rt. 104). I was driving West. We found ourselves behind a car that was driving in a peculiar manner, far to the right side of the lane, and moving slower than the speed limit. Cars were piling up close behind us and when we came to a passing-zone with dotted centerlines for a long distance ahead, my girlfriend ask me to pass the car in front of us. I left our lane when there were no oncoming cars visible in range in the left lane, and I began to pass this car at a moderate speed. Then, when I was not yet parallel with the car I was passing, ahead of me I saw a sedan suddenly appear in the lane ahead of me as if it had sprung up out of the street itself, and it was driving towards us. Because of this sudden change of apparent circumstances, I perceived a significant risk that, unless I immediately sped up and pulled ahead returning to my proper lane, the oncoming car ahead of us in the same lane might collide with our car before I could return to my proper lane, or one or both cars might have to ditch to the left. I sped up while in the left lane, and passed the car as quickly as possible (he might have begun driving at the speed limit after I began to pass him) and I returned to my proper lane. Just as I was returning to my proper lane I saw a police car parked on the left side of the road move in my direction, and when it chased us and flashed its lights I immediately pulled over and stopped. I then explained to the police officer that there must be a "dip" in the road that had concealed the sedan had then seemed to spring up out of the dip when I had begun to pass. The Officer acknowledged this fact. I told the officer that the people in control of the highway should not invite people to pass there (by painting dotted lines all the way to the dip) when they know that short cars will be concealed in the dip.
  3. There is no allegation nor any charge pending to suggest that the Defendant's original decision to pass the car in the striped passing-zone was unlawful or inappropriate in any way. There is no allegation nor any charge pending to suggest that the Defendant's acceleration above the posted speed limit for the purpose of promptly leaving the lane of the oncoming car was hazardous or reckless, nor unlawful in any way other than being in technical violation of VTL 1180(D).
  4. New York Penal Law section 35.05(2) prescribes that a technical violation of an offense defined by the Vehicle and Traffic Law may be lawful and justifiable under certain circumstances.
  5. Penal Law § 35.05, titled "Justification; generally", provides: "Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:
    1. Such conduct is required or authorized by law …; or
    2. . Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense."
      http://assembly.state.ny.us/leg/?cl=82&a=12
  6. " 'Offense' means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state....." Penal Law § 10.00. The term "offense" therefore means any felony, misdemeanor, violation, or traffic infraction, punishable by a "fine" unless otherwise specified in the law defining the offense. Penal Law § 10.00 (1-6). http://assembly.state.ny.us/leg/?cl=82&a=5
  7. The Justification Law prescribed in Article 35, "does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the [conduct] to be privileged under certain circumstances, it renders such conduct ENTIRELY LAWFUL." People v. McManus, 67 NY2d 541, 505 NYS2d 43 (1986).
  8. The Court is called upon by this Motion in Limine to "rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense" to the charged offense of driving "50" miles per hour in a "40" mile per hour zone (in literal violation of VTL § 1180(D)), pursuant to the terms of PL § 35.05(2).
  9. The Court should be guided in this determination of the Law by the Public Policy, and standards of morality expressed in the Statutes of this State. Both VTL § 1180 (Maximum speed regulations) and VTL § 1181 (Minimum speed regulations) recognize the general principle that a person should drive at the speed that "is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." More specifically, VTL § 1181 (regulating Minimum speed regulations) recites words reflecting its general principle that "no person shall drive at a speed less than necessary for safe operation…."   http://assembly.state.ny.us/leg/?cl=128&a=54
  10. Other statutes, in Article 35 of the Penal Law, uphold the ancient principle that when an innocent person "reasonably believes" it to be "necessary," in order to prevent a "serious physical injury" (PL § 10.00) or to terminate even a "substantial risk" (PL § 10.00) of "serious physical injury" to himself or another, that person may be entitled to "use deadly physical force" upon another person. See, e.g., PL § 35.15. That statute provides that whether or not "a person may [lawfully] use deadly physical force upon another person" may depend upon whether "he knows" that other (non-deadly) conduct (e.g., "retreating") will maintain "complete safety as to himself and others." In other words, the NY Legislature's Policy as to when it may be appropriate and lawful for a person in a perilous situation to act as appears to him necessary in defense of his life, turns upon whether or not that person "knows" his "complete safety" can be preserved by other conduct. Therefore, a person confronted with an imminent hazard or physical threat to his life is not required to investigate, discover, and pursue alternative remedies that he does not "know" will preserve his own and others' "complete safety"; rather, he may lawfully do what he "reasonably believes" is sufficient to maintain his and others' "complete safety."
  11. From these statutes it may be deduced that a person operating a motor vehicle is justified, as a matter of law, to accelerate beyond the posted maximum speed limit when, "having regard to the actual and potential hazards then existing," he reasonably believes such conduct (i.e., accelerating) to be "necessary for safe operation" of the vehicle, because he does not "know" that his "complete safety" can be otherwise preserved as against a specific hazard. This conclusion is plainly in accordance with "ordinary standards of intelligence and morality" (e.g., morality expressed by the Legislature), as required by the terms of Penal Law § 35.05(2) to justify conduct that avoids "private injury that is about to occur."
  12. Further, because the motor vehicle was obviously being operated on a "public highway," the alleged acceleration of the vehicle (up to "50" miles per hour) while engaged in passing a car and after seeing an oncoming car and to avoid collision with such oncoming car could also be independently justified as "an emergency measure to avoid an imminent public … injury."
  13. "Public … injuries" presumably include all violations of the Penal Law. Defendant submits that to continue to drive a car in the "wrong" lane towards an oncoming car suddenly appearing in that same lane, without accelerating to get QUICKLY BACK INTO A SAFE LANE AND OUT OF ITS WAY, would be "RECKLESS" conduct, in violation of various Misdemeanor statutes. Statutory Criminal Liability for a "reckless" omission to perform conduct (e.g., for failing to accelerate out of the way of oncoming traffic) implies a "legal duty" to perform that conduct.
  14. In other words, a person engaged in a lawful activity (e.g., passing) who suddenly finds himself in a perilous situation that may endanger his passenger and strangers on a public highway, HAS A LEGAL DUTY TO ACCELERATE OR OTHERWISE GET OUT OF THAT PERILOUS SITUATION. Having an imperative legal duty to the public to immediately get out of the lane of a suddenly appearing oncoming car, a person lawfully engaged in passing who merely accelerates his vehicle as seemed necessary in order to immediately get of that perilous situation cannot be guilty of violating VTL § 1180(D).
  15. Penal Law § 35.00, titled "Justification; a defense", provides that "In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense." In other words, the Defendant's Justification under 35.05(2) would not be "an Affirmative Defense," but rather would be a matter to be dis-proved by the People beyond a reasonable doubt.
  16. Accordingly, during any Trial in this case the People would bear the Burden of Proving, beyond a reasonable doubt, that the Defendant KNEW that the conduct (i.e., accelerating to a speed allegedly being only 10 miles per hour above the posted speed limit) was NOT "more desirable" (e.g., "as an emergency measure to avoid an imminent … private injury" such as a feared collision or an apparently substantial risk of collision between Defendant's Car and another car) than continuing to drive in the passing lane at below the speed limit. Further, the People will be required to prove that it would NOT have been "Reckless Operation" or "Reckless Endangerment" (i.e., "a public injury") for Defendant to continue to drive his vehicle in the passing lane (for a protracted period of time at or below the posted speed-limit) after an oncoming car in the same lane became visible and known to the Defendant.
  17. Because the Police Officer who wrote the ticket herein witnessed and/or contemporaneously acknowledged the peril that Defendant suddenly perceived just before Defendant accelerated out of the path of the oncoming car, the People's Attorney(s) should not require a Trial nor even further appearances by the Defendant (who lives in Albany) to satisfy themselves as to the ability of Defendant to prove the claimed facts and circumstances at a Trial herein.
  18. Because the People cannot rationally expect to prove that Defendant should have remained in the "wrong" lane for a prolonged and unnecessary period of time (i.e., by continuing to drive in the "wrong" lane at or below the posted speed limit) after seeing an oncoming car suddenly appear ahead of him, this case should be dismissed (e.g., In the Interest of Justice) upon Notice by the Court to the District Attorney's Office, or vice versa. The Defendant hereby consents to any motion to dismiss this case before a trial.

Dated: Sept 25, 2002

Sincerely,

Mark R. Ferran BSEE scl JD mcl

[Counselier@aol.com ]

_____________[ End of Motion in Limine ] _____________________________________
 
 
The neophyte Assistant District Attorney responded to the Defendant's Motion in Limine with an Affirmation making the bold categorical assertion that "The People would oppose such motion.  There are no statutory defenses to an alleged violation of the speed limit."  She also insisted (in the alternative) that the Defendant should not have been driving that day, or after leaving his lane to pass should have attempted to return to his original position between the cars he left behind, by in effect parallel parking between two moving cars while moving about 40 MPH towards an oncoming car.
 
By then, the Defendant had realized that he was dealing with people who were statutorily illiterate and sought to confirm Defendant's interpretation of the statute (Penal Law section 35.05(2)) by caselaw on similar statutes from around the country.  To defendant's surprise and satisfaction, the Defendant discovered (via www.Google.com ) that the Highest Court of his own state (New York) had already addressed the question of whether "speeding" and "Traffic Infractions" could be justifiable "conduct" under the statute.  The cases found by the Defendant uniformly indicated that New York Penal Law section 35.05(2) is a "statutory defense[] to an alleged violation of the speed limit" under appropriate (emergency) circumstances.  In further support of his Motion in Limine, and in contemplation of having to drive 4 hours (each way) to defend himself at trial, the Defendant submitted the following (rather angry) Pretrial Memorandum of Law.
 
 
_________[ Pretrial Memorandum of Law (In further support of Motion in Limine) ] _____________

STATE OF NEW YORK COUNTY OF MONROE

TOWN COURT TOWN OF CLARKSON

______________________________________________________________________________

THE PEOPLE OF THE STATE OF NEW YORK

[Re: For SPEEDING "50" MPH in a 40 MPH passing zone]

[Tkt. No. WD479083 3]

-v.s.-                                                         MEMORANDUM OF LAW

Mark R. Ferran

______________________________________________________________________________

Every competent Attorney remembers learning in his or her first year of law school that: "The defense of necessity was traditionally seen as a "choice of evils" defense. ... It is a defense to any offense except killing an innocent person...." as noted in United States v. Captain Rockwood, http://www.armfor.uscourts.gov/opinions/1999Term/98-0488.htm

In People v. Maher, 79 N.Y.2d 978, 594 N.E.2d 915, 584 N.Y.S.2d 421 (1992), the Highest Court of the State of New York expressly decided that Penal Law § 35.05(2) can be "a statutory defense" to "an alleged violation of the speed limit":

"Under the "choice of evils" theory of Penal Law section 35.05(2), conduct that would otherwise constitute an offense is justified when it is "necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. Defendant asserts that he chose to engage in certain conduct (speeding) in avoidance of a perceived attack [i.e. serious physical injury] .... [W]e agree with defendant that he was entitled to have the jury consider whether his speeding was justified. It is not for the trial court to hypothesize other reasonable alternatives to the course of action chosen by the defendant. If on any reasonable view of the evidence, the jury might have decided that defendant's actions were justified, the failure to charge the defense constitutes reversible error (see, People v Padgett, supra)."

http://www.law.cornell.edu/ny/ctap/079_0978.htm

The defendant's (technically still pending, undecided) motion is a "motion in limine" (pronounced "lí-mi-nee," from the Latin "limen," a threshold; i.e., a motion made at the threshold of trial). A "Motion in Limine" is clearly NOT A "MOTION TO DISMISS." Penal Law section 35.05(2) ordains that "the court SHALL rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense." The Court has a Ministerial Duty to "Rule," and it is ILLEGAL for the Court to omit to "rule" Whether or Not "the claimed facts and circumstances would, if established, constitute a defense." A Trial Court's failure to correctly determine Whether "the claimed facts and circumstances would, if established, constitute a defense" constitutes "reversible error." People v. Maher, supra.

A very famous comparable "motion in limine" was made by a defendant, and later upheld on appeal, in the Federal case of United States v. Gomez, (9th Cir. 1995):

"Gomez was indicted on two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1): one for the shotgun, the other for the shells in it. Gomez made a motion in limine seeking permission to introduce evidence tending to prove that his possession of the shotgun was justified. The district court denied the motion and Gomez pleaded guilty to one count, retaining the right to appeal the district court's ruling."

http://www.saf.org/pub/rkba/Legal/GomezDecision.htm

The Appellate Court REVERSED the Trial Court's evidentiary ruling, and Gomez's conviction, saying:

"Thus, if the evidence, when viewed in the light most favorable to Gomez (i.e., the defendant), was adequate to make out a justification defense, he was entitled to present it and have the jury instructed accordingly. ... [In the Motion in Limine stage, the Court] must give Gomez the benefit of the doubt, so long as he presents a plausible case that he thought himself in danger. ... .. If Gomez's story is believed [e.g., by a Jury], he was privileged to arm himself ... Gomez was entitled to tell the jury his side of the story. His evidence, if believed, sufficed to make out a justification defense. It should have been admitted."

http://www.saf.org/pub/rkba/Legal/GomezDecision.htm

In other words, to lawfully determine the issue raised in the "motion in limine" in the present case, the "claimed facts" must be deemed true, and "viewed in the light most favorable to" the defendant, which is the standard for review of the sufficiency of a Pleading to state a cause of action, under the NY CPLR which applies herein to fill the gaps in the CPL. The presence or absence of confirmatory or perjured "testimony" (e.g., of the Officer-witness) to be provided at a trial is completely irrelevant to the determination of such a Motion in Limine requiring the Court to determine ONLY the legal significance of "the claimed facts."

In footnote 7, of the Gomez decision, the Court noted that "The Second Amendment embodies the right to defend oneself and one's home against physical attack." [See also, "Law, a Revolutionary Idea For Peace" at: http://billstclair.com/ferran/markferran1.html ]. The Gomez court referred to "The fundamental right to self preservation", and decided that upon the "claimed facts" that right had justified the conduct of Gomez. It is that same right that the defendant in this traffic infraction case asserts justified his own alleged conduct (e.g., speeding "50" MPH in a 40 MPG passing zone.).

In State v. Rasmussen, 524 N.W.2d 843 (N.D. 1994) the Court stated:

"We have recently recognized the availability of [a Justification] defense to a strict liability offense. See State v. Michlitsch, 438 N.W.2d 175 (N.D.1989). ... For a thorough analysis of the legal issue, see State v. Brown, 107 Wis.2d 44, 318 N.W.2d 370 (1982) [defense of legal justification is applicable to speeding violation]. ... In Brown at 376, the Wisconsin Supreme Court discussed policy considerations in determining if particular defenses should be permitted for a particular strict liability offense:

"[W]hen determining whether we should recognize any defenses to a strict liability traffic offense, we must determine whether the public interest in efficient enforcement of the traffic law is outweighed by other public interests which are protected by the defenses claimed. "There are several public interests protected by the defenses claimed. The privilege of self-defense rests upon the need to allow a person to protect himself or herself or another from real or perceived harm when there is no time to resort to the law for protection. The rationale of the defenses of coercion and necessity is that for reasons of social policy it is better to allow the defendant to violate the criminal law (a lesser evil) to avoid death or great bodily harm (a greater evil)."We conclude public policy factors would support an affirmative defense to driving under suspension in life-threatening circumstances."

http://www.court.state.nd.us/court/opinions/940113.htm

West Virginia Judge Starcher, explained:

"And, it simply makes no sense, nor is it fair, to not permit a person charged with a criminal offense to explain or tell why that person did whatever he or she may have done. ... Penalizing one who acted rationally to avoid a greater harm will serve neither to rehabilitate the offender nor to deter others from acting similarly when presented with similar circumstances." Rather than discussed in terms of necessity, "[t]he matter is often expressed in terms of choice of evils: When the pressure of circumstances presents one with a choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil." For similar reasons, necessity defenses are sometimes labeled "competing harms." Under such circumstances, the evil brought about from violating the law is deemed to be less than the evil which would have resulted from literal compliance with the law."

http://www.state.wv.us/wvsca/DOCS/spring00/26568d.htm

To Find the necessity or choice-of-evils provision in your state code, go to: http://www.law.cornell.edu/

1. On the pull down menu "Law About", click on "Crimes and Criminal Procedure".
2. Click on "Criminal Law".
3. On the right panel, click on "State Criminal Codes".
4. On the alphabetical list, click on "Criminal Code".
5. Click on your state.
6. Click on "Defenses" or similar term.
7. Click on "Justification" or "Choice of Evils".

Or, start searching here: http://www.findlaw.com/11stategov/

See also Civil Disobedience at Ground Zero - http://www.federalobserver.com/archive.php?aid=4108

Please (on your own time) see Mark Ferran's other writings about Law, including the "Rights of New York Landowners to Use Force to Stop, Expel, or Arrest Defiant Trespassers," at http://billstclair.com/ferran

Date: November 15, 2002

Respectfully Submitted,

/s/ Mark R. Ferran BSEE scl JD mcl

Counselier@aol.com

P.S. The Office of Court Administration informed me that this Court can call an 800-# for education and advice regarding the difference between a "motion in limine" and a "motion to dismiss."

_______________  [ End of Memorandum of Law ]  _________________________________
 
 
At the beginning of the Trial the ADA (under pressure from her boss who had learned that the Press would be covering the Trial) conceded that she had failed to consider the "case law" cited in the above Memorandum of Law  She then humbly invited Defendant to "Renew" his motion for a determination of the Sufficiency of the Claimed Facts and Circumstances.  The newly elected Justice of the Peace (a 30 year veteran police officer) refused to make such a determination, and denied that Penal Law 35.05(2) applied to potentially justify the commission of a Traffic Infraction (e.g., speeding) because it is defined in "The Vehicle and Traffic Law."  The Judge also refused to make specific findings of fact regarding the claimed facts and circumstances, and at the end of the trial concluded merely that Defendant had exceeded the speed limit, and was therefore guilty of speeding.  Defendant was fined $100 plus a State surcharge of $35 dollars and was told (by the Stenographer summoned by the Court) that the cost of the Trial Transcript for an appeal would cost $500. 
Defendant took an appeal and has moved the County (Appellate) Court to interpret away or waive the requirement of the Full Trial Transcript since the whole trial was unnecessary given that Defendant never denied that he had exceeded the speed limit while passing a car (under made necessary by the circumstances), and given the Trial Judge's refusal to apply Defendant's (only) defense or at least to make specific findings of fact with regard to the claimed facts and circumstances.
 
 
_______________  [ Draft of Appellate Brief ]  _________________________________
 

STATE OF NEW YORK     COUNTY OF MONROE
COUNTY COURT      
______________________________________________________________________________
THE PEOPLE OF THE STATE OF NEW YORK 
 
[Re: For SPEEDING "50" MPH (really 62 MPH) in a 40 MPH passing zone] 
 
[Tkt. No. WD479083 3]        [AP #03/0003/Clarkson]
-v.s.-     
   
Mark R. Ferran
Defendant-Appellant. 
______________________________________________________________________________
 

APPELLATE BRIEF
(DRAFT-NOTES)
______________________________________________________________________________
 
 
POINT 1
THE "CHOICE OF EVILS" DEFENSE IN PL 35.05(2) APPLIES TO POTENTIALLY JUSTIFY CONDUCT KNOWN AS "SPEEDING" IN VIOLATION OF VEHICLE AND TRAFFIC LAW SEC. 1180(D)).
 
In People v. Maher, 79 N.Y.2d 978, 594 N.E.2d 915, 584 N.Y.S.2d 421 (1992), the Highest Court of the State of New York expressly decided (contrary to the Assistant District Attorney's advice to the Town Justice) that Penal Law § 35.05(2) CAN BE "a statutory defense" to an alleged violation of the speed limit:
"Under the "choice of evils" theory of Penal Law section 35.05(2), conduct that would otherwise constitute an offense is justified when it is "necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. Defendant asserts that he chose to engage in certain conduct (speeding) in avoidance of a [serious physical injury] .... [W]e agree with defendant that he was entitled to have the jury consider whether his speeding was justified. It is not for the trial court to hypothesize other reasonable alternatives to the course of action chosen by the defendant. If on any reasonable view of the evidence, the jury might have decided that defendant's actions were justified, the failure to charge the defense constitutes reversible error (see, People v Padgett, supra)."
http://www.law.cornell.edu/ny/ctap/079_0978.htm
 
In People v. Maher, 79 N.Y.2d 978; 584 N.Y.S.2d 421 (1992), the Court further noted that:
"Defendant was indicted for second degree manslaughter, second degree vehicular manslaughter, driving while intoxicated, and two counts of leaving the scene of an accident. [Vehicle and Traffic Law § 600 titled, " Leaving scene of an incident without reporting" prescribes that a violation of its provisions "shall constitute a traffic infraction [or] a misdemeanor" depending upon whether the accident involved injury to a person]   [A]s to the remaining leaving the scene count, the jury found defendant not guilty 'with justification.'    … Upon defendant's request, and with no objection by the People, the trial court instructed the jury on the justification defense as to the leaving the scene count."
People v. Maher, 79 N.Y.2d 978; 584 N.Y.S.2d 421 (1992).
 
Thus, the ratio decidendi of the Trial Court Ruling(s) appealed from (to the effect that Penal Law section 35.05(2) categorically does not apply to Justify violations of "traffic" offenses defined in the "Vehicle and Traffic Law") was plainly repudiated by the prior holdings in a decision of the Highest Court of the State.

Furthermore, the High Court specifically said, "we agree with defendant that he was entitled to have the jury consider whether his speeding was justified." People v. Maher, 79 N.Y.2d 978; 584 N.Y.S.2d 421 (1992) (The court found "jury .. could not find defendant guilty of criminally negligent homicide unless it concluded that he was speeding [without Justification] at the time of the fatal accident.")  Thus, "speeding" has already been recognized by the High Court as "conduct" which can be legally Justified under emergency circumstances, pursuant to Penal Law section 35.05(2).
    Further contrary to the Trial Court's ruling and its ratio decidendi, a line of cases stands for the (obvious) principle that if the conduct (e.g., "speeding") in People v. Mahar was justified such that criminal responsibility for a resulting DEATH could be avoided, then the defendant in Mahar could NOT properly be found guilty of "lesser charge" of "speeding" in violation of the Vehicle and Traffic Law.  Ergo, conduct including "speeding" in violation of the Vehicle and Traffic Law, can be legally Justified, whether or not such conduct involves a substantial risk of death to another, AND ESPECIALLY SO IN CIRCUMSTANCES WHERE SPEEDING MAY REDUCE A RISK OF DEATH TO ANOTHER, provided that such conduct is undertaken for an emergency purpose, etc.,  as provided in Penal Law section 35.05(2).
"Justification is an ordinary defense. That is, the People have the burden of disproving such defense beyond a reasonable doubt. (Penal Law § 25.00 [1]; § 35.00.) … The essence of the defense of justification is such that it does not … negate a particular element of a [offense].  Rather, by recognizing the [conduct] to be privileged under certain circumstances, it renders the conduct in issue entirely "lawful." ( People v McManus, 67 NY2d 541; People v Taylor, 177 NY 237.)"
People v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989).
"[A] finding of 'not guilty by reason of justification' as to any one of the counts would preclude a verdict of 'guilty' as to its lesser included offenses.  Stated otherwise, once the jury found the defendant not guilty of the greater offense on the basis of justification, it could not properly reach a contradictory finding that the defendant was guilty of a lesser charge…."
People v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989) (citing People v. Hoy, 122 A.D.2d 618, 504 N.Y.S.2d 939 (Appeal from judgment of Monroe County Court, Celli, J))
 
"A finding of not guilty by reason of justification to the manslaughter, second degree, charge precludes a finding of guilt to any lesser charge ( People v Huntley, 87 AD2d 488, affd 59 NY2d 868). The Court of Appeals in People v McManus (67 NY2d 541, 546), makes this very clear by stating: 'The [justification] defense does not … negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful.' "
People v. Hoy, 122 A.D.2d 618, 504 N.Y.S.2d 939 (Appeal from judgment of Monroe County Court, Celli, J)
"A finding of 'not guilty by reason of justification' [on any charge based on defendant's conduct] precludes a finding of guilt on any [lesser charge based on that conduct] because it renders defendant's conduct lawful (see, People v Hoy, 122 AD2d 618, 619)."
People v. Dare, 175 A.D.2d 586; 572 N.Y.S.2d 251 (4th Dept. 1991).
 
Thus, where the voluntary act of "speeding" is Justified by emergency circumstances, pursuant to Penal Law section 35.05(2), a defendant charged with "speeding" (e.g., "50" in a 40 MPH zone) cannot properly be denied the "Determination" due pursuant to 35.05(2) nor can he properly be found "guilty" of that traffic offense.
In State v. Rasmussen, 524 N.W.2d 843 (N.D. 1994) the North Dakota Court stated:

"We have recently recognized the availability of [a Justification] defense to a strict liability offense. See State v. Michlitsch, 438 N.W.2d 175 (N.D.1989). ... For a thorough analysis of the legal issue, see State v. Brown, 107 Wis.2d 44, 318 N.W.2d 370 (1982) [defense of legal justification is applicable to speeding violation]. ... In Brown at 376, the Wisconsin Supreme Court discussed policy considerations in determining if particular defenses should be permitted for a particular strict liability offense:
"[W]hen determining whether we should recognize any defenses to a strict liability traffic offense, we must determine whether the public interest in efficient enforcement of the traffic law is outweighed by other public interests which are protected by the defenses claimed. "There are several public interests protected by the defenses claimed. The privilege of self-defense rests upon the need to allow a person to protect himself or herself or another from real or perceived harm when there is no time to resort to the law for protection. The rationale of the defenses of coercion and necessity is that for reasons of social policy it is better to allow the defendant to violate the criminal law (a lesser evil) to avoid death or great bodily harm (a greater evil)."We conclude public policy factors would support an affirmative defense to driving under suspension in life-threatening circumstances."

http://www.court.state.nd.us/court/opinions/940113.htm
 
In People v. Musto, 243 A.D.2d 508; 664 N.Y.S.2d 960 (2nd Dept. 1997), the Court expressed no doubt that a defendant charged with "driving" while not legally permitted to drive, for the purpose of "driving a passenger to a hospital" during an actual medical emergency would be legally entitled to a Jury Charge on the defense of justification (Penal Law § 35.05 [2]), if the could produce evidence that the passenger was in fact "in need of medical attention" and was "in any imminent danger so as to warrant the 'emergency measure.' "
 
In People v. Moore, 42 A.D.2d 268; 346 N.Y.S.2d 363 (2nd Dept. 1973):
"A chase at speeds up to 60 miles per hour ensued, with both cars passing through two red lights en route.   … The remaining error lies in the trial court's refusal to charge the defense of justification (Penal Law, § 35.05, subd. 2; see People v. Steele, 26 N Y 2d 526). The defendant contends that he was approached by a stranger carrying a gun and, in an attempt to flee, committed traffic violations, including running through two red lights. As earlier noted, there was a sharp conflict between his and the People's version of the incident. The jury, of course, was free to believe the defendant's version, or any part of it (Part v. Steele, supra, p. 529), and thus to conclude that he justifiably had felt it necessary to commit the various traffic infractions to avoid "an imminent * * * private injury * * * about to occur by reason of a situation occasioned * * * through no fault of the [defendant]" (Penal Law, § 35.05, subd. 2 [bracketed word added]). If the jury chose to believe all or some part of the defendant's story, then, assuming justification had been charged, they could determine that the defendant acted justifiably in an emergency situation in speeding through the red lights and driving recklessly. Since they had been charged that if they found "that the defendant committed any of these traffic offenses in the presence and view of Patrolman Barry, then, as a matter of law, Patrolman Barry was authorized to make an arrest of the defendant without a warrant," it was important that the charge also contain an explanation of the defense of justification."
People v. Moore, 42 A.D.2d 268; 346 N.Y.S.2d 363 (2nd Dept. 1973).
 
The foregoing cases all indicate that conduct known as "speeding" (in violation of the Vehicle and Traffic Law) can be legally Justified under certain circumstances, pursuant to Penal Law 35.05(2).  Thus, CONTRARY TO THE ASSUMPTION OF THE TICKETING POLICE OFFICER, AND CONTRARY TO THE ADVICE OF THE ASSISTANT DISTRICT ATTORNEY, AND CONTRARY TO THE RULINGS OF THE TOWN JUSTICE BELOW, THERE IS A "STATUTORY DEFENSE" to an alleged violation of the speed limit.

In People v. Cook, ( Essex County Court, 1999)  a factually similar passing-emergency was involved, but the layman defendant did not formally raise the Choice of Evils Justification Defense.  In the Cook case, defendant was "passing another car" when suddenly, he "saw a car coming toward Him in the oncoming lane":
"The Town Court's return indicates that the Defendant testified that:
"...He was passing another car (doing approx. 40 M.P.H.) and when He saw a car coming toward Him in the oncoming lane, He had to make a decision whether to hurry and complete the pass, or to brake hard to stop the pass and return to His own lane. Mr. Cook chose to hurry to complete the pass, and said He floored it in able to do so.   Mr. Cook's final statement was that He denies He was speeding; but to avoid an emergency circumstance He can account for His Inappriote (sic) Behavior."
"That testimony is not sufficient to sustain a conviction of speeding because it is not an admission by the Defendant that he was driving at a particular speed in excess of the speed limit of 55 miles per hour."
http://www.courts.state.ny.us/4jd/essex/cookdec.html ( copy attached)
 
The defendant in Cook apparently knew, when he saw the oncoming car, that he had the safe option to "brake hard to stop the pass and return to his own lane" (with complete safety to himself and others), BECAUSE THERE WERE NO CARS CLOSE BEHIND HIM WHEN HE LEFT HIS OWN LANE.  In the present case, the "break hard" return alternative (the alternative to speeding-out of the emergency) was NOT SAFE, or NOT AVAILABLE, because the LINE OF CARS backed up close behind the Defendant when he passed the slower car ahead.
The natural tendency of drivers of cars in a line of traffic backed up behind a slow car is to immediately ADVANCE and to CLOSE the space left unoccupied by the departure of the passing car, and certainly NOT to slow down to further to enlarge that space (e.g., to enable the passing car to safely return to his original position just in case of an unforeseen emergency).  It is also foreseeably possible that another car in the backed up line of traffic (behind the first passing car) might also choose that same apparent opportunity to pass the slow car.  This possibility, combined with an attempt by the first car to "hard break" or otherwise slow and return to his original position, would create a substantial and unreasonable risk that the first passing car would back into and collide with the second passing car. Vehicle and Traffic Law section 1211, titled "Limitations on backing" prescribes "(a) The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic."  This principle should also be instructive to the Assistant District Attorney and the courts with regard to "relative" movement backwards into a questionable gap within a line of cars.
Further, without "hard breaking," and assuming that the cars behind did not advance into the defendant's original position, the simple act of "slowing" down (in the lane of an oncoming vehicle) in an attempt to return to the original position would amount to a deliberate decision to spend MORE TIME in front of (and driving towards) an oncoming car, which is INTUITIVELY HAZARDOUS AND WRONG.
Furthermore, the basic idea of "returning" to the original position behind the car being passed, would be in effect, AN ATTEMPT TO PARALLEL-PARK BETWEEN TWO MOVING CARS, WITH EACH CAR POTENTIALLY MOVING AT DIFFERENT RANDOM SPEEDS, at an average speed of over 30 Miles per hour.  This backwards maneuver would also generally require looking backwards (watching the position of the car behind), and therefore taking one's eyes off of the oncoming car and all other conditions ahead.  Some people are unable to parallel park BETWEEN STATIONARY (PARKED) cars without bumping into one or both of them.  It is hardly reasonable to argue that any non-stunt-driver in their right mind should be so confident as to attempt such a reckless maneuver if another (surer, safer and faster) route to safety was available.

The many POTENTIALLY CATASTROPHIC foreseeable consequences of "hard breaking" or even "slowing down" in order to attempt to "return to the original position behind the vehicle he was passing", removes the "return to original position" idea from the realm of the reasonable and sane, and places that idea squarely into the category of Reckless Endangerment and Unreasonable Risk of Death.   The suggestion that a person who has lawfully departed from a line of close traffic in order to lawfully pass a car should then recklessly attempt to return to his original position is simply the product of the mind of a neophyte Assistant Prosecutor who is CATEGORICALLY opposed to allowing any "Speeding" incident to be recognized as Justified and Lawful. To wit: "The People would oppose such motion.  There are no statutory defenses to an alleged violation of the speed limit."  But undoubtedly, if that reckless backing maneuver had been attempted, with a resulting pile-up of cars and many deaths, that the same ADA would be sure to insist in court at the ensuing homicide trials that that massive loss of life could have been avoided had the defendant's passing car simply completed the pass (by accelerating forward into his proper lane and out of the way of the oncoming car). 
 
 
POINT  __
JUSTICE DELAYED IS JUSTICE DENIED.
 
THE TRIAL COURT'S REFUSAL TO MAKE SPECIFIC FINDINGS WITH RESPECT TO PLAINTIFF'S CLAIMED DEFENSE OF JUSTIFICATION DELAYED THAT AJUDICATION AND PREJUDICED DEFENDANT'S REMEDIES ON APPEAL.
 
There are at least "Three Possible Verdicts" in a Bench Trial:  "Guilty", "Not Guilty" and "Not Guilty by Reason of Justification".  People v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989);  Accord, Mahar, supra ("the jury found defendant not guilty 'with justification.' " )
"If a verdict sheet is silent on the issue of justification, it becomes nearly impossible for a … appellate court to discern whether a … finding of "… guilty" was predicated upon the People's [mere proof of] the requisite elements of the crime or [that plus a necessary disproof of] the justification defense beyond a reasonable doubt.  Similarly, it becomes equally difficult to discern whether a [trier of fact] properly followed the [Law] with respect to the justification defense when they find defendant "guilty" ….  Therefore, requiring the [trier of fact] to render a specific verdict on the issue of justification not only complies with the law but also facilitates intelligent review of the record. "
People v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989).
"Furthermore, judicial economy is best served by submitting such a verdict sheet [i.e., requesting specific findings of fact] to the jury since this practice may prevent defective verdicts, unnecessary retrials and ambiguous records.  … Submitting a verdict sheet in the form herein, therefore, is not only permissible within the meaning of the statute, but also facilitates appellate review and avoids unnecessary retrials."
People v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989).
 

Contemplating the imminent necessity of This Appeal (made necessary by the Court's initial rulings on the Justification Defense), the Defendant explicitly demanded that the Trial Judge (trier of fact) should make Specific Findings of Fact with respect to the elements of defendant's proffered Justification Defense, so that the legal issue (applicability of PL s 35.05(2) to VTL offenses) presented herein could be resolved together with a DISMISSAL of the charges on appeal.  The refusal of the Trial Court to make such specific findings may seem like a cumulative error (i.e., not independent of the Initial Ruling Denying the Applicability of PL 35.05(2)) but it actually Compounded the initial error and inflicted Further and Additional Injury upon Defendant (e.g., in this Appeal), by refusing to "facilitate[] appellate review and [failing to] avoid[] unnecessary retrials."
 
JUSTICE DELAYED IS JUSTICE DENIED.
 
The Defendant has born an enormously disproportionate burden to defend a legal principle in this case.  Travelling, from Albany, 4 hours (in each direction) to conduct a trial necessitated solely because the LAW OF THE STATE WAS UNCERTAIN in the minds of agents of the Government in the vicinity of Rochester New York, has already unfairly shifted the State's burden (to establish and maintain Law) onto Defendant's back.
"Viewing that evidence, as we must, in the light most favorable to defendant (see, People v Watts, 57 NY2d 299, 301), a charge on the defense of justification was warranted.  … The court's failure to charge the defense of … may have resulted in the [trier of fact] finding defendant … "guilty" … despite [defendant's] justification.  A finding of not guilty by reason of justification, however, precludes a finding of guilt on any count because it renders defendant's conduct lawful (see, People v Hoy, 122 AD2d 618, 619)."
People v. Dare, 175 A.D.2d 586; 572 N.Y.S.2d 251 (4th Dept. 1991).
 
"Had the jury believed this evidence, they could have found him not guilty of the Vehicle and Traffic Law charge. Accordingly, the Trial Court committed reversible error when it deprived the jury of the opportunity to pass upon these facts (see, People v Steele, 26 NY2d 526, 529; People v Brady, 16 NY2d 186, 189-190)."
People v. Flynn, 79 N.Y.2d 879, 589 N.E.2d 383, 581 N.Y.S.2d 160 (1992).
 

POINT ___
THE DEFENDANT'S RIGHT TO TRAVEL CANNOT BE CONSTRAINED AT THE WHIM OF A SLOW-MOVING CAR, NOR OF AN ASSISTANT DISTRICT ATTORNEY
 
The Assistant District Attorney has asserted in various manners that the Defendant forfeited his rights under Penal Law section 35.05(2) simply because Defendant had voluntarily chosen to drive that day, and more particularly, because Defendant had voluntarily chosen to (Lawfully) PASS the slower-moving car ahead of Defendant (initially without exceeding the speed limit).  Passing a car under the circumstances as they initially appeared to the Defendant, was not forbidden by any LAW of the State.  Defendant was not charged with violating any law regulating "passing."

The Assistant District Attorney implies that Defendant is to be OUTLAWED (i.e., Put Out of the Protection of the Law) simply because the Defendant exercised his Natural Liberty to Travel in a wholly lawful manner in compliance with all the statutes of the State of New York.  The Assistant District Attorney's Argument is UNCONSTITUTIONAL.

The Bill of Rights of the Constitution of the State of New York Ordains:
Section 1. No member of this state shall be ... deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land...
Section 6. No person shall be deprived of life, liberty, or property without due process of law.
Section 14 Such parts of the common law ....and such acts of the legislature of this state as are now in force, shall be and continue the law of this state....
The New York State Constitution, Bill of Rights.
 
There is NO LAW forbidding a person (who is licensed by the State to Drive a Car) from "travelling" upon the Public Highways of the State.  The Right to Travel, and the right to maintain and to Preserve His Life and the Life of his Passenger While Doing So, is one "of the rights or privileges secured to any citizen" and a Liberty that he cannot be "deprived of … unless by the law of the land."  The Right to Travel upon a Public Highway of the State in a Car at a Speed Not Forbidden by "Law" is a Right that the NO ONE may ARBITRARILY interfere with.  There is NO LAW forbidding a person who is licensed by the State to Drive a Car from "travelling" upon the Public Highways of the State.
“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment” Kent v. Dulles ,  357 U.S. 116 , 125 , 78 S. Ct. 1113, 1118 (1958). “ The right to travel , to go from place to place as the means of transportation permit , is a natural right subject to the rights of others and to reasonable regulation under law.” Schachtman v. Dulles, 225 F. 2d 938 , 941 ( D.C. Cir. 1955);  Wellford v. Bataglia , 343 F.Supp. 143 , 147 (D.Del. 1972) ( “The right to travel … is a right to intrastate as well as interstate migration”); Worthy v. Herter , 270 F. 2d. 905 , 908 (D.C. Cir. 1959) (“ The right to travel is a part of the right to liberty”) ;  Coolman v. Robinson , 452 F.Supp. 1324 , 1326 (N.D. Ind. 1978) (“The right to travel is a very old and well established constitutional right”);

“The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety…It is not a mere privilege…”
Thompson v. Smith , 155 Va. 367 , 154 S.E. 579, 583 (1930).
"The right of a citizen to use the highways , including the streets of the city or town , for travel and to transport his goods, is an inherent right which cannot be taken from him, but it is subject to reasonable regulation in the interest of the public good”
Florida Motor Lines , Inc. v. Ward , 102 Fla. 1105 , 137 So. 163 , 167 (Fla. 1931).
 
The right to travel is also a constitutional right under the New York State Constitution , embodied within the assembly provisions of  Art. I ,  § 9 . Gow v. Bingham , 107 N.Y.S. 1011 , 1014 (1907) (“ …the right of personal liberty … includes … absolute freedom to everyone to go where and when he pleases”). 
 
Other state case law cites:  see Joseph v. Randolph , 71 Ala. 499 , 504 -05 (1882) ( There can be no denial of the general proposition that every citizen of the United States , and every citizen of each State of the Union , as an attribute of personal liberty , has the right, ordinarily, of free transit from , or through the territory of any State. This freedom of egress or ingress is guaranteed to all by the clearest implications of the Federal , as well as of the State constitution”) .
This constitutional right to travel is widely recognized: see State v. Wylie , 516 P.2d 142 , 145-46 (Alaska 1973) ("[T]he freedom to travel throughout the United States ‘ uninhibited by statutes , rules , or regulations which unreasonably burden or restrict this movement’ is a fundamental personal right under the United States Constitution [ and ] ‘any classification which serves to penalize the exercise of  that right, unless shown to be necessary to promote a compelling governmental interest , is unconstitutional’”);  In re White, 97 CalApp. 3d 141 , 158 Cal. Rptr. 562 , 566-67 (1979) (“[T]there is a constitutional right intrastate travel”); Heninger v. Charnes, 200 Colo. 194 ,  613 P 2d 884 , 887  (1980) (“[T]he right to travel interstate is without question a fundamental right under the United States Constitution”) ;  Hall v. King 266 So.2d 33, 34 ( Fla.1972) ( the right to travel “may be restricted only for a compelling state interest”) ; Chicago Motor Coach v. City of Chicago337 Ill. 200 , 169 N.E. 22 , 25 (1929) (“ Even the Legislature has no power to deny a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience”) ; People v. Chambers , 32 Ill.App.3d 444 , 335 N.E. 2d 612 , 617 (1975); Sturrup v. Mahan , 290 N.E. 2d 64 , 68 (Ind.App. 1972) (“…each citizen , adult  or minor , has a fundamental right to move freely from State to State and from City to City within the State”) ; Manzanares v. Bell , 214 Kan. 589 , 522 P. 2d  1291 , 1301 (1974) (“… freedom to travel throughout this state and this nation is a fundamental right”) ;
“This right of the people to the use of the public streets of a city is so well established and so universally recognized in this country that it has become a part of the alphabet of fundamental rights of the citizen."
Swift v. City of Topeka 43 Kan. 671 , 23 P. 1075 , 1076 (1890).

"The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has  under his right to enjoy life and liberty, to acquire and possess property , and to pursue happiness and safety …. The rights aforesaid, being fundamental  , are constitutional rights,  and while the exercise thereof  may be reasonably regulated by legislative act in pursuance of the police power of the State, and although those powers are broad , they do not rise above those privileges which are imbedded in the constitutional structure”
Teche Lines , Inc. v. Danforth , 195 Miss. 226, 12 So.2d 784, 787, (1943).

Donnelly v. City of Manchester , 111 N.H. 50 , 274 A.2d 789 , 791 (1971) (“ The right of every citizen to live where he chooses and to travel freely not only within the state but across its borders is a fundamental right.”) ; State v. Dobbins , 277 N.C.  484 , 178 S.E. 2d 449 , 456 (1971) (“[T]he right to travel upon the public streets of a city is a part of every individual’s liberty”); Cummins v. Jones , 79 Or. 276 , 155 P. 171, 172 (1916) ; Henry v. Cherry & Webb , 30 R.I. 13 , 73 A. 97 , 107 (1909) ("[T]he right of personal liberty include[s] .. the right to go where a persons please[s] “) ;  Berberian v. Lussier ,  87 R.I. 226 , 139 A. 2d 869 , 872 (1958) ;    Knowlton v. Board of Law Examiners , 513 S.W. 2d 788 , 790-91 (Tenn. 1974) (“ The right to travel freely among the states is a fundamental, constitutionally protected right”); Eggert v. City of Seattle, 81 Wash. 2d 840 , 505 P. 2d 801 , 804 (1973) ( “The right to travel is a right applicable to intrastate as well as interstate commerce… Both travel within and between states is protected”)
 
 The Liberty and Right of one Licensed person to drive at a speed below the posted speed limit Does not abrogate and Forfeit the equal Right of the person driving behind him from (passing and) driving at or below the speed limit.  Accordingly, there is NO LAW in New York State absolutely forbidding a person who is licensed by the State to Drive a Car from PASSING a vehicle ahead of him that is ARBITRARILY moving Slower than the posted speed limit.  A Law or custom that imposed upon a first citizen the ARBITATRARY DECISION of the second person ahead of him to drive below the speed limit, would violate the Constitutional Right and Liberty to Travel without Arbitrary Restraints and Interference.  Instead, the statutory restrictions upon "passing" are FINITE and LIMITED to include conditions of the markings of the center-line, and the apparent distance ahead to any oncoming car in the oncoming lane. 

“This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes , rules , or regulations which unreasonably burden or restrict this movement” 
 Shapiro v. Thompson , 394 U.S. 618 , 629 , 89 S. Ct. 1322 , 1329 ( 1969).

“[O]ne’s inalienable right to liberty and the pursuit of happiness is curtailed if he may be unreasonably kept off the highways maintained by him as a citizen and taxpayer ; … ‘the freedom to make use of one’s own property, here a motor vehicle, as a means of getting about from place to place , whether in pursuit of business or pleasure, is a ‘liberty’ which under the Fourteenth Amendment cannot be denied or curtailed by a state without due process of law.’ In any event , the right of a citizen to drive a motor vehicle upon the highways is to be safe guarded against the whim or caprice of police or administrative officers."
State v. Moseng , 254 Minn. 263, 95 N.W. 2d  6, 13 (1959).
 
"[S]ince the right to travel was a constitutionally protected right , ‘any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest , is unconstitutional’"
Dunn v. Blumstein , 405 U.S. 330 , 339 , 92 S.Ct. 995 , 1001 (1972).
Demiragh v. Devos , 476 F. 2d 403 , 405 (2nd Cir. 1973) (“…the right to travel…[is]  a ‘fundamental’ one , requiring the showing of a ‘compelling’ state or local interest to warrant its limitation”); United States v. Davis , 482 F.2nd 893 , 912 (9th Cir. 1973) ( “… it is firmly settled that freedom to travel at home and abroad without unreasonable governmental restriction is a fundamental constitutional right of every American citizen … At the minimum , governmental restrictions upon freedom to travel are to be weighed against the necessity advanced to justify them, and a restriction that burdens the right to travel ‘too broadly and indiscriminately’ cannot be sustained”); Costa v. Bluegrass Turf  Service , Inc., 406 F. Supp. 1003 , 1007 , (E.D. Ken. 1975) (“… pure administrative convenience, standing alone , is an insufficient basis for an enactment which … restricts the right to travel”); Cole v. Housing Authority of City of Newport , 435 F. 2d 807 , 809 (1st Cir. 1970) (“…the right to travel is a fundamental personal right that can be impinged only if to do so is necessary to promote a compelling governmental interest”); Tetalman v. Holiday Inn , 500 F. Supp. 217 , 218 (N.D. Ga. 1980) ( “the constitutionally protected right to travel … is basically the right to travel unrestricted by  unreasonable government interference or regulation”)
 
The Assistant District Attorney's Assertions that the defendant's Lawful Decision to Lawfully Pass the slower car ahead of him in compliance with all State Traffic Laws somehow worked the Forfeiture and Loss of his Right of Self-Preservation under Penal Law 35.05(2) is an argument for an Arbitrary, Capricious, Unreasonable, and Unconstitutional penalty and restraint upon Defendant's Natural and Constitutional Right to Travel, and must be held to be VOID.  Any Law, Custom, Policy or Edict of the State,  "which serves to penalize the exercise of a constitutional right [i.e., freedom of movement, including the freedom to pass] unless shown to be necessary to promote a compelling governmental interest, is unconstitutional” Fraternal Order of Police , Youngstown Lodge v. Hunter , 36 Ohio Misc. 103 , 303 N.E. 2d 103 , 106 (1973).  And, any attempted Restraint or penalty upon the Liberty of Movement (e.g., passing) that is NOT AUTHORIZED BY THE LAW OF THE LAND OF THE STATE OF NEW YORK is VOID and forbidden by the Fourteenth Amendment and by the Bill of Rights of the Constitution of the State of New York.

Accordingly, given that the Defendant did not violate, and was not charged with violating any regulation related to "passing," his decision to (lawfully) pass a slower vehicle ahead of him, based upon the appearance of the circumstances at the time he made that decision, cannot be deemed to be "fault" for the later emergency (the sudden appearance of an oncoming vehicle) which was caused by the design and line-painting of the highway itself.  The Assistant District Attorney's assertions during the Trial that Defendant should have simply refrained (and should in the future refrain) from ever passing a slower car ahead of him amount to Desperate but Unconstitutional and Criminal Acts of Coercion in violation of Claimant's Legal Rights and Liberties under the Law of the State of New York. 
 
_____________________[END OF DRAFT APPELLATE BRIEF]_________________________
 
You are invited to read Mark R. Ferran's other informative Writings at:
 
http://billstclair.com/ferran
 
http://www.federalobserver.com/archive.php?aid=4108
 
http://www.federalobserver.com/archive.php?aid=4082
 
http://www.propertyrightsresearch.org/dear_fellow_property.htm
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