People v. Ullrich

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.