Opinion
December 14, 1977
Appeal from the District Court of Suffolk County, First District, EDWARD U. GREEN, JR., J.
Henry F. O'Brien, District Attorney (Simon Perchik of counsel), for appellant.
Annino, Ehrlich Gowan (James A. Gowan of counsel), for respondents.
MEMORANDUM.
Order granting defendants' motion to dismiss the informations unanimously reversed on the law and facts, motion denied, informations reinstated and matter remanded for trial.
Defendants were prosecuted for violating article 10 (§ 27, subd [a]) of the Suffolk County Sanitary Code which prohibits the idling of a motor vehicle engine for more than three minutes, a law evidently designed to reduce air pollution. The court below found the section unconstitutional because it was an "unreasonable" enactment. In our opinion, this conclusion, reached on the basis of a motion to dismiss the informations, cannot be upheld. (See Oriental Blvd. Co. v Heller, 27 N.Y.2d 212, 219, app dsmd 401 U.S. 986; People v Friedman, 302 N.Y. 75, 79, app dsmd 341 U.S. 907; 8 N.Y. Jur, Constitutional Law, § 72.) The court cited with approval the opinion of the trial court in People v Holbrook Transp. Corp. ( 84 Misc.2d 650, app dsmd 88 Misc.2d 80). We do not concur in the views expressed in the Holbrook case concerning the constitutional infirmities of the afore-mentioned law. The general rule is that a court of original jurisdiction should not resort to statutory interpretation of constitutional dimensions absent the most compelling circumstances (see Comiskey v Arlen, 55 A.D.2d 304, 307; Halpern v Gozan, 85 Misc.2d 753, 757).
Concur: FARLEY, P.J., GLICKMAN and GAGLIARDI, JJ.