OUTCOME: the judgment of conviction is reversed and the matter remanded to the court below for a new trial
The foregoing evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), was legally insufficient to establish the convictions of driving at an unreasona...ble and imprudent speed and speeding beyond a reasonable doubt. "Radar and speedometer readings are generally admissible and may be sufficient in themselves if there be reasonable proof of their accuracy" (People v Dusing, 5 NY2d 126, 128 [1959]). "[E]vidence of the reading of an untested speedometer without more [is] insufficient to sustain a conviction for speeding" (People v Heyser, 2 NY2d 390, 393 [1957]). In the absence of any testimony by the officer of his visual estimate of the speed of defendant's vehicle or of the traffic or road conditions at that time, the evidence was insufficient to prove that defendant was driving at an unreasonable or imprudent speed, or speeding. Accordingly, the judgments convicting defendant of these charges are reversed and these accusatory instruments are dismissed.
However, the evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d at 621), was legally sufficient to establish defendant's guilt of failing to stop at a stop sign. Accordingly, the judgment convicting defendant of failing to stop at a stop sign is affirmed.
In view of the foregoing, we pass on no other issue regarding the charges of driving at an unreasonable and imprudent speed and of speeding.
Tanenbaum, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: May 20, 2011
Speeding and traffic ticket
People v. Schonfeld
Jan 01, 2009
OUTCOME: judgment of conviction is reversed
26 Misc.3d 74 (2009)
2009 NY Slip Op 29529
895 N.Y.S.2d 762
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
FRED SCHONFELD, Appellant.
2008-2287 RO CR.
Supreme Court, Appellate Term, Secon...d Department.
Decided December 31, 2009.
75*75 Matisyahu Wolfberg, Spring Valley, for appellant.
Michael L. Klein, Town Attorney, Suffern, for respondent.
NICOLAI, P.J., TANENBAUM and MOLIA, JJ., concur.
77*77 OPINION OF THE COURT
MEMORANDUM.
Ordered that the judgment of conviction is reversed, on the law, and the matter is remitted to the Justice Court for a new trial.
Defendant was charged by simplified traffic information with speeding (Vehicle and Traffic Law § 1180 [d]). It is not disputed that the complainant police officer timely mailed a copy of the supporting deposition to defendant in an envelope directed to him at the address he had provided on the back of the appearance ticket. The envelope was returned unopened by the post office to the sender with the notation "ATTEMPTED—NOT KNOWN." Contrary to defendant's contention, the mailing constituted the service upon him required by CPL 100.25 (2) (see generally CPLR 2103; People v Godoy, 180 Misc 2d 771, 773 [Crim Ct, NY County 1999]; cf. People v Hollinger, 15 Misc 3d 130[A], 2007 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2007]).
Even if we assume, arguendo, that defendant's challenge to the sufficiency of the proof of proper venue in the Justice Court of the Town of Ramapo (see CPL 100.55 [4]) is not waived (compare People v Dandridge, 45 AD3d 330, 331 [2007], with People v Sandoz, 248 AD2d 334 [1998]; cf. People v Carvajal, 6 NY3d 305, 311-312 [2005]; People v Williams, 24 Misc 3d 131[A], 2009 NY Slip Op 51358[U] [App Term, 9th & 10th Jud Dists 2009]), it is not preserved for appellate review, and we decline to reach it in the interest of justice. Moreover, in our view, we are not required to reach the question whether the verdict of guilty was against the weight of the evidence on this venue issue (see People v Greenberg, 89 NY2d 553, 555-556 [1997] ["(v)enue is not an element of the offense"]; cf. People v Danielson, 9 NY3d 342 [2007]; People v Cullen, 50 NY2d 168, 173 [1980] [jury's implicit finding on venue was subject to weight of the evidence review]; People v Lightbody, 62 AD3d 632, 633 [2009] [same]), and we decline to do so.
Defendant's challenge to the sufficiency of the identification evidence is not preserved, and we decline to reach it in the interest of justice. Were we to reach it, we would find that it 76*76 lacks merit. Furthermore, according, as we must, great deference to the Justice Court's credibility determinations (see People v Lane, 7 NY3d 888, 890 [2006]; see also People v Romero, 7 NY3d 633, 644-645 [2006]), upon our own review of the evidence (see People v Danielson, 9 NY3d 342 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]) we are satisfied that the verdict was not against the weight of the evidence.
We reverse the conviction, however, for the following reasons. Defendant appeared on the trial date without counsel. The Justice Court failed to give him the required advisements of, among other things, his rights to counsel "at every . . . stage of the action" (CPL 170.10 [3]) and to an adjournment for the purpose of obtaining counsel (see CPL 170.10 [3] [a]; [4] [a]). We note that the appearance ticket did not adequately inform him of these rights (cf. CPL 170.10 [5]). Furthermore, prior correspondence from the court had not sufficiently alerted him to his right to counsel, particularly because, under the circumstances presented, he could reasonably have believed that his appearance on the trial date was for the purpose of having the simplified traffic information dismissed. Finally, the court should have granted defendant's request for an adjournment for the very purpose of obtaining counsel (see CPL 170.10 [4] [a]).
Accordingly, the judgment of conviction is reversed and the matter is remitted to the Justice Court for a new trial.
Speeding and traffic ticket
People v Neuhaus (Mordechai)
Jan 01, 2008
OUTCOME: the convictions are reversed and the five simplified traffic informations were dismissed.
People v Neuhaus (Mordechai)
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[*1] People v Neuhaus (Mordechai) 2008 NY Slip Op 52377(U) [21 Misc 3d 141(A)] Decided on November 20, 2008 Appellate Term, Second Departmen...t 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 November 20, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ
2007-1399 OR CR.
The People of the State of New York, Respondent,
against
Mordechai Neuhaus, Appellant.
Appeal from five judgments of the Justice Court of the Town of Wallkill, Orange County (Ray Shoemaker, J.), rendered May 22, 2007. The judgments convicted defendant, after a nonjury trial, of five charges of permitting a passenger in his motor vehicle to be without seatbelts or car seats.
Judgments of conviction reversed on the law, simplified traffic informations dismissed, and fines, if paid, remitted.
Defendant was stopped by a state trooper while driving on Route 17 in the Town of Wallkill in a van with headlights flashing alternately. The trooper subsequently issued five tickets to defendant charging that five of his children in the rear of the van were not in seatbelts or car seats (Vehicle and Traffic Law § 1229-c).
Stenographic minutes were not taken of the trial.
Viewing the evidence as presented in the justice's return in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we determine that the proof of guilt was legally insufficient, since no rational trier of fact could have deemed all of the elements of the offense established beyond a reasonable doubt (see Vehicle and Traffic Law § 1229-c; People v Danielson, 9 NY3d 342, 349 [2007]). The summary of the trooper's testimony in the return does not show how the trooper concluded that the children were outside of their seat belts or safety seats while defendant was operating the van. There is no indication that the trooper actually saw any of the children while the van was being operated or that anyone admitted that they were then unrestrained. Nor does it appear that defendant's testimony satisfied the deficiencies in the People's proof. Accordingly, the convictions are reversed and the five simplified traffic informations are dismissed.
In light of the foregoing, the other issues raised herein are rendered academic. [*2]
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.
Decision Date: November 20, 2008
Speeding and traffic ticket
People v Berger (Avraham)
Jan 01, 2007
OUTCOME: the judgment of conviction is reversed and the information dismissed.
[*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
Speeding and traffic ticket
People v Meisels (Zvi)
Jan 01, 2007
OUTCOME: hat the judgment of conviction is reversed, as a matter of discretion in the interest of justice, the information is dismissed, and the fine, if paid, is remitted.
[*1]
Decided on May 12, 2011
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
.
The People of the St...ate of New York, Respondent, NO~ 2010-95 OR CR
against
Zvi Meisels, Appellant.
Appeal from a judgment of the Justice Court of the Village of Goshen, Orange
County (Thomas J. Cione, J.), rendered December 18, 2009. The judgment convicted defendant, after
a nonjury trial, of following another vehicle too closely.
ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of
justice, the information is dismissed, and the fine, if paid, is remitted.
Defendant was charged in a simplified traffic information with following another vehicle too closely
(Vehicle and Traffic Law § 1129 [a]). Prior to trial, the Justice Court dismissed the simplified traffic
information because the People had failed to respond to defendant's request for the complaining officer's
supporting deposition. Thereafter, a long form information was filed charging defendant with the same
traffic violation based on the same incident. At trial, the complaining officer acknowledged that he had
filed a long form information after the original simplified traffic information had been dismissed for his
failure to provide defendant with a supporting deposition. Following the nonjury trial, the Justice Court
convicted defendant of the charged offense.
People v Meisels (Zvi)
2011 NY Slip Op 50873(U)
Decided on May 12, 2011
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.This court has consistently held that where an earlier simplified traffic information is dismissed for
failure to serve defendant with a requested supporting deposition, the People may not proceed to trial on a
re-filed accusatory instrument "absent special circumstances warranting re-prosecution of the
defendant" (People v Rathgeber, 23 Misc 3d 130[A], 2009 NY Slip Op 50653[U] [App Term, 9th & 10th
Jud Dists 2009]; see CPL 100.40 [2]; People v Berger, 16 Misc 3d 133[A], 2007 NY Slip Op 51498[U]
[App Term, 9th & 10th Jud Dists 2007]; 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]). No special circumstances exist in this case to warrant defendant's reprosecution. A ruling to the contrary "would defeat the purpose of CPL 100.40 (2), disregard the interest of
judicial economy, and erode the confidence of the public in the criminal justice system" (People [*2]v
Rathgeber, 23 Misc 3d 130[A], 2009 NY Slip Op 50653[U] at *2 [internal citations omitted]). In light of
our determination, we do not reach defendant's remaining contentions.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: May 12, 2011
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