#### The People of the State of New York, Respondent, *v.*Le Roy W. Osborn, Appellant.

County Court, Albany County,

March 4, 1958.

*Curtis & Warren*for appellant.

*George N. Meyl, District Attorney (Condon Lyons*of counsel), for respondent.

Martin Schenck, J.

The defendant was charged with a violation of subdivision 7 of section 11 of the Vehicle and Traffic Law, which makes certain provisions concerning the combined *713weights of vehicles and their loads and establishes maximum weights therefor. This defendant was tried by the court (Special Sessions, Bethlehem, White, J.), without a jury and was found guilty of carrying a load that brought his combined truck and load weight in excess of the maximum prescribed under the foregoing section. He was thereupon fined the sum of $100, the minimum authorized penalty. In the return of the Trial Justice it was stated that a violation of subdivision 7 of section 11 amounted to a misdemeanor.

An examination of the pertinent sections of the Vehicle and Traffic Law leads me to the conclusion that a violation of subdivision 7 of section 11 does not constitute a misdemeanor. No authorities have been cited upon this point, but the section in question fails to contain any indication that this violation is a misdemeanor. Other provisions for penalties under the Vehicle and Traffic Law, where the offense is designated a misdemeanor by the Legislature, specificially so indicate. For example, section 70 of the Vehicle and Traffic Law, dealing with penalties, states that a violation of subdivision 1 of section 11 constitutes a misdemeanor. On the other hand, section 70 provides merely that a violation of subdivision 7 of section 11 “ shall be punishable by a fine ”. This defendant, therefore, could not have been convicted of anything more than a violation of the Vehicle and Traffic Law, not amounting to a misdemeanor. The certificate of conviction reciting that the defendant has committed a misdemeanor, therefore, is in error. It does not seem to me that, in the interest of justice, this error could be remedied by a mere change in the certificate of conviction. The trial herein was apparently conducted on the theory that a misdemeanor was involved. To insure a just and proper disposition of the case, therefore, a new trial should be had.

In view of the fact that the charge here did not involve a misdemeanor, the defendant’s arguments concerning the sufficiency of the information cannot prevail. The defendant relies largely upon *People*v. *Patrick*(175 Misc. 997). That case, however, citing *People*v. *Hippie*(263 N. Y. 242), is authority for the proposition that the precision of pleading required in an information charging a misdemeanor does not apply to an information charging a violation of the Vehicle and Traffic Law of lesser degree than a misdemeanor. The defendant, therefore, is in the somewhat anomalous position of arguing that the information was insufficient to charge a misdemeanor, whereas all that is involved here is a Vehicle and Traffic Law violation. Although this conclusion might seem to prejudice this defendant, who, under the circumstances, might well be entitled to have *714an information charging a misdemeanor dismissed, nevertheless, the only solution which now appears possible is the ordering of a new trial upon the basis ‘of the present information which must be deemed sufficient as charging a mere traffic violation.

The judgment of conviction of the Court of Special Sessions, Town of Bethlehem, is, therefore, reversed, and a new trial ordered. The issue at the new trial will be the question of whether or not this defendant committed a traffic violation under subdivision 7 of section 11 of the Vehicle and Traffic Law.