People v Berger (Avraham)

Matisyahu Wolfberg

Case Conclusion Date:January 1, 2007

Practice Area:Speeding / Traffic Ticket

Outcome:the judgment of conviction is reversed and the information dismissed.

Description:[*1] People v Berger (Avraham) 2007 NY Slip Op 51498(U) [16 Misc 3d 133(A)] Decided on July 12, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on July 12, 2007 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ 2006-1949 OR CR. The People of the State of New York, Respondent, against Avraham Berger, Appellant. Appeal from a judgment of the Justice Court of the Town of Tuxedo, Orange County (Loretta Davis, J.), rendered October 31, 2006. The judgment convicted defendant, after a nonjury trial, of speeding. Judgment of conviction reversed as a matter of discretion in the interest of justice, fine, if paid, remitted and information dismissed. Under the circumstances presented, we are of the view that defendant should not have been tried on the new information following the dismissal of the simplified traffic information on the court's own motion on the day of trial (see People v Rosenfeld, 163 Misc 2d 982, 983 [App Term, 9th & 10th Jud Dists 1994]; People v Aucello, 146 Misc 2d 417 [App Term, 9th & 10th Jud Dists 1990]; cf. People v Nuccio, 78 NY2d 102 [1991]). Were we not inclined to reverse the conviction and dismiss the information as a matter of discretion in the interest of justice, we would still find it necessary to reverse the conviction on the law, and order a new trial, in view of, inter alia, the omission to inform defendant of his rights to counsel and an adjournment to obtain counsel (CPL 170.10 [3], [4]; People v Rios, 9 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2005]). Moreover, the pro se defendant should have been informed that he had an option to testify or not. Instead, he was told by the court at the start of the trial that after the officer's testimony, ". . . you can ask questions of him and then you will give your testimony under oath . . . ." The court subsequently stated, "Now I'm going to ask for your testimony. So I'm going to have you tell me what happened, okay, Mr. Berger." This error proved to be prejudicial, since defendant admitted upon the witness stand that he had been speeding and since the court expressly took note of said admission in finding him guilty. Accordingly, the judgment of conviction is reversed and the information dismissed. Rudolph, P.J., McCabe and Tanenbaum, JJ., concur. Decision Date: July 12, 2007