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Decided on June 14, 2004
Just Ct of Town of Lockport, Niagara County

1G04030113.01
Leonard G. Tilney, J.
PRETRIAL PROCEDURE
Defendant made oral motions to dismiss, which were followed up by written motions alleging that the Defendant did not actually operate his motor vehicle or, at the very least, did not intend to operate his motor vehicle. In either event, the Defendant was not operating his motor vehicle on a public highway. Although no affidavit is submitted by defense counsel allocating the factual circumstances upon which the Motion to Dismiss is based, in the oral motion, the facts allocated to this court, which are assumed, but not found controlling are as follows:
FACTS
Defendant, on March 14, 2004, parked his car at the Stop and Go gas station at 4004 Lake Avenue, Town of Lockport, New York. He was then transported by other persons to a party where he consumed alcoholic beverages and returned in the early hours of the morning to the Stop and Go gas station. Defendant realized he was intoxicated and had no intent of driving his motor vehicle, but called his brother to come and get him. While waiting for his brother, the Defendant did start the motor vehicle to keep himself warm. The Niagara County Sheriff, on routine patrol, saw Defendant at the gas station at 4:54 a.m. Deputy Ander arrested Defendant for driving while intoxicated after obtaining a Breathalyzer test reading of .13%. Defendant admitted to the Deputy that he had been drinking approximately 10 drinks, including 8 beers and 2 vodkas at the Portage Pub. He indicated he did not drive, but got dropped off at the gas station.

[*2]PUBLIC HIGHWAY
The court must first determine whether or not the property at the Stop and Go Gas Station is a public highway. Defense quotes

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New York Law