Appeal from a judgment of the Justice Court of the Town of Pleasant Valley, Dutchess County (Thomas A. Reed, J.), rendered March 31, 2010.
People v Riedinger (Kyle)
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This opinion is uncorrected and will not be published in the printed Official Reports.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., LaCAVA and IANNACCI, JJ .
The judgment convicted defendant, after a non-jury trial, of speeding.
ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
Defendant was charged in a simplified traffic information with speeding (Vehicle and Traffic Law § 1180 [d]). After a non-jury trial, defendant was convicted of the charged offense. On appeal, defendant contends that his conviction was not supported by legally sufficient evidence, as the People failed to establish his identity as the driver of the vehicle or the trooper's qualification visually to estimate vehicle speed or to operate a radar device. While defendant's contentions are unpreserved (see CPL 470.05 ), we exercise our discretion to reach them in the interest of justice.
When viewed in the light most favorable to the prosecution (People v Contes, 60 NY2d 620 ), the evidence adduced at trial failed to establish defendant's guilt of speeding beyond a reasonable doubt. A reading from an untested radar unit, coupled with a qualified officer's visual estimate, suffices to prove the offense of speeding beyond a reasonable doubt (see People v Dusing, 5 NY2d 126, 128 ; People v Ramaker, 9 Misc 3d 131[A], 2005 NY Slip Op 51592[U] [App Term, 9th & 10th Jud Dists 2005]). A qualified police officer's testimony that he visually estimated the speed of a defendant's vehicle, as exceeding the speed limit by more than 20 miles per hour, is also sufficient to establish a defendant's guilt of speeding beyond a reasonable doubt (People v Olsen, 22 NY2d 230, 232 ; see also People v Poltorak, 28 Misc 3d 129[A], 2010 NY Slip Op 51222[U] [App Term, 9th & 10th Jud Dists 2010]; People v Gravagna, 26 Misc 3d 138[A], 2010 NY Slip Op 50225[U] [App Term, 9th & 10th Jud Dists 2010]; People v Ramaker, 9 Misc 3d 131[A], 2005 NY Slip Op 51592[U]). However, in the case at bar, the trooper failed to establish his qualification to estimate the speed of motor vehicles; therefore, the evidence adduced at trial was legally insufficient (see People v Ferri, 10 Misc 3d 136[A], 2005 NY Slip Op 52135[U] [App Term, 9th & 10th Jud Dists 2005]).
We note that, contrary to the Justice Court's holding, absent proof of the device's accuracy, the radar device's reading alone was not legally sufficient to support defendant's conviction (see People v Dusing, 5 NY2d at 128; People v Cani, 17 Misc 3d 134[A], 2007 NY Slip Op 52167[U] [App Term, 9th & 10th Jud Dists 2007]).
Accordingly, the judgment convicting defendant of speeding is reversed, the accusatory instrument is dismissed, and the fine if paid, is remitted.
Tanenbaum, J.P., LaCava and Iannacci, ...