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The People of the State of New York v. David K. Nunnally

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.
DAVID K. NUNNALLY,
APPELLANT.

Appeal from a judgment of the Justice Court of the Town of New Windsor, Orange County (Richard W. Thorpe, J.), rendered October 27, 2009.

People v Nunnally (David)

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The judgment convicted defendant, after a non-jury trial, of failing to yield the right of way at a stop sign.

ORDERED that the judgment of conviction is affirmed.

The People filed a simplified traffic information charging defendant with failing to yield the right of way at a stop sign (Vehicle and Traffic Law § 1142 [a]). The information and supporting deposition stated that, on May 22, 2009, defendant operated his automobile on Marshall Drive in the Town of New Windsor and, upon reaching the intersection with Route 94 where a stop sign is posted, failed to yield the right of way to a vehicle that entered that intersection from Route 94.

The complainant, a veteran Town of New Windsor police officer, testified at the non-jury trial that the traffic on Marshall Drive approaching the intersection with Route 94 is controlled by a stop sign. While the officer was on routine motor patrol traveling in the eastbound direction of Route 94, he approached the intersection with Marshall Drive at about 40 miles per hour when defendant pulled out in front of him from Marshall Drive, forcing the officer, who had the right of way (see Vehicle and Traffic Law § 139), to brake his vehicle precipitously to avoid a collision. Following the trial, the Justice Court found defendant guilty as charged.

On appeal, defendant argues, in essence, that the complainant's testimony, to the effect that defendant's actions created an "immediate hazard" (Vehicle and Traffic Law § 1142 [a]) or a "danger of collision" (Vehicle and Traffic Law § 139), was false, exaggerated, or mistaken, and that in any event, under the circumstances, defendant had operated his vehicle in a responsible manner.

We find that the complainant's testimony was not incredible as a matter law (see e.g. People v Lynch, 63 AD3d 959 [2009]), and, when viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), was legally sufficient to establish defendant's commission of the traffic infraction beyond a reasonable doubt. Further, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see People v Danielson, 9 NY3d 342 [2008]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]). Upon a review of the record, we are satisfied that the verdict of guilt was not against the weight of the credible evidence (see People v Romero, 7 NY3d 633, 644 [2006]). Defendant conceded the facts of the incident, aside from whether his actions amounted to the failure to yield the right of way. Defendant's insistence that, given the obstructed view of Route 94 from Marshall Drive and his otherwise appropriate operation of his vehicle at the intersection, he could not have been aware of the "immediate hazard" presented to the complainant's vehicle, did not establish a defense (see e.g. Salamone v Barenbaum, 281 AD2d 199 [2001]; Gravina v Wakschal, 255 AD2d 291 [1998]).

We have considered defendant's remaining claims and find them to be without merit (People v Glenn, 53 AD3d 622, 624 [2008]; People v Moreau, 34 AD3d 499 [2006]).

Accordingly, the judgment of conviction is affirmed.

Tanenbaum, J.P., LaCava and Iannacci, JJ., concur.

Decision Date: May 20, 2011

20110520

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