Appeal from a judgment of the Justice Court of the Town of Ramapo, Rockland County (Rhoda F. Schoenberger, J.), rendered December 2, 2009.
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ
The judgment convicted defendant, after a non-jury trial, of disobeying a traffic control device.
ORDERED that the judgment of conviction is affirmed.
Following a non-jury trial, the Justice Court convicted defendant of disobeying a traffic control device by making a prohibited right turn (Vehicle and Traffic Law § 1110 [a]). This appeal by defendant ensued.
At trial, Police Officer Polchinski testified that he had observed defendant stop at an intersection and make a right turn while the light was red, even though a sign was posted, at the corner of the intersection, which stated that a right-hand turn on a red light was prohibited. Defendant admitted that she had made the turn, but testified that she had not seen the sign because it was located "25" feet before the intersection. Defendant asserted that, pursuant to Vehicle and Traffic Law § 1110 (b), Vehicle and Traffic Law § 1110 (a) should not be enforced against her because the sign was not in the proper position. Section 1110 (b) provides, in pertinent part, that "[n]o provision of this title for which signs are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official sign is not in proper position and sufficiently legible to be seen by an ordinarily observant person."
Section 2B.19 of the Manual on Uniform Traffic Control Devices provides that: "Turn prohibition signs should be placed where they will be most easily seen by road users who might be intending to turn. If No Right Turn . . . signs are used, at least one should be placed either over the roadway or at a right corner of the intersection." Section 2B.45 further provides that a "No Turn on Red sign shall be placed adjacent to the appropriate signal face wherever possible."
The photographs admitted into evidence at trial show that a utility pole was located approximately six feet from the near right corner of the intersection and that the sign at issue was located approximately six feet in front of the utility pole (approximately 12 feet from the near right corner of the intersection). Had the sign been placed at the corner of the intersection, it would not have been visible to drivers approaching the intersection, as it would have been blocked by the utility pole. Under the circumstances presented, we find that the sign was in proper position to be seen by an ordinarily observant person (cf. Vehicle and Traffic Law § 1110 [b]; People v Brahms, 192 Misc 2d 357 [App Term, 9th & 10th Jud Dists 2002]). As defendant's guilt was established beyond a reasonable doubt, we affirm the judgment of conviction.
Tanenbaum, J.P., Molia and Iannacci, ...