
    The People of the State of New York, Plaintiff, v. Gordon King, Defendant.
    City Court of Rochester, Monroe County,
    October 25, 1972.
    
      
      Jack \B. Lazarus, District Attorney (Frank Pappalardo of counsel), for plaintiff. Nicholas P. Varían, Public Defender (Leslie A. Bradshaw of counsel), for defendant.
   Andrew G. Celli, J.

The above-named defendant is charged with two counts of hitchhiking within the City of Rochester in violation of subdivision (a) of section 1157 of the Vehicle and Traffic Law of the State of New York. The matter comes before this court on a motion to dismiss the simplified traffic informations charging the defendant with soliciting a ride in violation of subdvision (a) of section 1157 on the grounds that the facts stated do not constitute the infraction charged.

In its entirety, the section of the Vehicle and Traffic Law reads as follows: “ § 1157. Pedestrians soliciting rides, or business, (a) No person shall stand in a roadway for the purpose of soliciting a ride, or to solicit from or sell to an occupant of any vehicle.”

The motion is in the nature of a motion for declaratory judgment to determine whether or not a person who is soliciting a ride or hitchhiking and who is not standing in the roadway proper is guilty of the infraction as stated in the section.

Subdivision (a) of section 1157 of the Vehicle and Traffic Law which governs the solicitation of rides on all roadways except the Thruway system, and State expressway and interstate route highways, provides that: “ No person shall stand in a roadway for the purpose of soliciting a ride ”. Section 140 of the Vehicle and Traffic Law defines roadway ” as follows: That portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder ’ ’.

The legislative intent in the passage of the statute was to prevent highway accidents between automobiles in the roadway and pedestrians standing therein soliciting a ride. It was further felt that a person standing in the roadway, if not injured himself, might be the cause of another accident wherein a vehicle would strike another vehicle or stationary object.

The court therefore holds that the act of soliciting a ride does not constitute the infraction of hitchhiking under subdivision (a) of section 1157 of the Vehicle and Traffic Law if the solicitor is standing off the roadway proper, on the shoulder, curb, or sidewalk.

It is necessary in the case at bar that the prosecution show that the defendant, Gordon King, was carrying on the act of hitchhiking within the area of the roadway as set out in section 140 of the Vehicle and Traffic Law.  