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ATV’S ARE NOT MOTOR VEHICLES WITHIN THE MEANING OF PENAL LAW 125.13 (1) (FIRST DEGREE VEHICULAR MANSLAUGHTER); CONCURRENT INCLUSORY COUNTS OF PENAL LAW 125.13 (3) DISMISSED (THIRD DEPT).

The Third Department dismissed certain counts of the indictment which stemmed from an accident involving an ATV (all-terrain vehicle). A passenger in the ATV, driven by defendant, was thrown from the ATV and killed. Defendant was alleged to have been driving while intoxicated and was convicted of vehicular manslaughter in the first degree, vehicular manslaughter in the second degree, aggravated driving while intoxicated and driving while intoxicated. The Third Department determined that one of the first degree vehicular manslaughter counts must be dismissed because ATV’s are not motor vehicles within the meaning of that statute (Penal Law 125.13 (1)).  The court also found that three concurrent inclusory counts must be dismissed:

ATVs are specifically excluded by the plain language of the relevant definition of motor vehicle. As relevant herein, the Penal Law defines “vehicle” to include a “motor vehicle,” which is further defined in the Vehicle and Traffic Law as “[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power, except. . . [ATVs] as defined in [Vehicle and Traffic Law] article [48-B]” (Vehicle and Traffic Law § 125 …; see Penal Law § 10.00 [14]). This specific exclusion of ATVs from the definition of motor vehicle is further evident from two statutes that contain provisions that would be unnecessary if ATVs were included in the definition of motor vehicle. First, the crime of vehicular manslaughter in the second degree contains separate provisions for incidents that arise from the operation of motor vehicles (see Penal Law § 125.12 [1]) and ATVs (see Penal Law § 125.12 [3]) and, second, the Vehicle and Traffic Law contains a provision specifically providing that ATVs are motor vehicles for the purpose of Vehicle and Traffic Law article 31, which prohibits the intoxicated operation of a motor vehicle (see Vehicle and Traffic Law § 2404 [5]). Thus, we are constrained to conclude that ATVs are not motor vehicles for purposes of the Penal Law. Accordingly, the weight of the evidence does not support defendant’s conviction for vehicular manslaughter in the first degree under Penal Law § 125.13 (1) (count 1). * * *

Defendant contends that his convictions under counts 3, 4, 5, 6 and 7 must be dismissed as inclusory concurrent counts of the conviction of vehicular manslaughter in the first degree under count 2 (see CPL 300.40 [3] [b]). “Concurrent counts are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater” (CPL 300.30 [4]). The People concede that defendant’s conviction of vehicular manslaughter in the first degree under count 2 requires that counts 3, 4, 6 and 7 be dismissed as inclusory concurrent counts. However, they accurately note that count 5 — charging aggravated driving while intoxicated — is not an inclusory concurrent count of vehicular manslaughter in the first degree as charged pursuant to Penal Law § 125.13 (3) in count 2 because it is possible to commit the latter without also committing the former … . People v Wager, 2019 NY Slip Op 04786, Third Dept 6-13-19

 

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