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The People of the State of New York v. Charles Berger

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


May 20, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
CHARLES BERGER,
APPELLANT.

Appeal from judgments of the Justice Court of the Town of Ramapo, Rockland County (Samuel Colman, J.), rendered September 15, 2009.

People v Berger (Charles)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 20, 2011

PRESENT: TANENBAUM, J.P., LaCAVA and IANNACCI, JJ

The judgments convicted defendant, after a non-jury trial, of driving at an unreasonable and imprudent speed, speeding and failing to stop at a stop sign.

ORDERED that the judgments convicting defendant of driving at an unreasonable and imprudent speed and speeding are reversed, on the law, the accusatory instruments are dismissed, and the fines, if paid, are remitted; and it is further,

ORDERED that the judgment convicting defendant of failing to stop at a stop sign is affirmed.

By separate simplified traffic informations, defendant was charged with driving at an unreasonable and imprudent speed on Sands Point Road (Vehicle and Traffic Law § 1180 [a]), speeding on Carlton Road (Vehicle and Traffic Law § 1180 [d]), and failing to stop at a stop sign (Vehicle and Traffic Law § 1172 [a]). Following a non-jury trial, the Justice Court found defendant guilty of the foregoing charges. On appeal, defendant contends, among other things, that the People failed to establish that the Justice Court of the Town of Ramapo was the proper venue, and that the evidence was legally insufficient to support the convictions.

Since defendant failed to challenge the sufficiency of the proof of proper venue in the Justice Court of the Town of Ramapo (see CPL 100.55 [4]), this contention is unpreserved for appellate review, and we decline to reach it in the interest of justice (see People v Schonfeld, 26 Misc 3d 74 [App Term, 9th & 10th Jud Dists 2009]; see also People v Nelson, 38 AD3d 472, 473 [2007]; People v Sorrentino, 12 AD3d 1197 [2004]).

The evidence adduced at trial established that the incident from which the charges arose took place at about 11:30 P.M. The police officer testified that he had observed defendant's vehicle travel "through the four-way stop at the intersection of West Maple and Carlton Road" at "a high rate of speed," that the brake lights of defendant's vehicle came on but the vehicle did not come to a full and complete stop, and that his calculation of the speed of defendant's vehicle was based on pacing the vehicle against his police car's speedometer reading. The officer conclusorily stated that his police car's speedometer was calibrated, but he did not provide any calibration records for the speedometer. Even though the officer testified that he was trained in the visual estimation of moving vehicles, he never testified that his calculation of the speed of defendant's vehicle was based on his visual estimation. Also, there was no testimony regarding the traffic or road conditions at the time of the incident.

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 unreasonable 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

20110520

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