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,
People v Alexander (James)
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This opinion is uncorrected and will not be published in the printed Official Reports.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
Appeal from a judgment of the Justice Court of the Town of New Castle, Westchester County (Douglas M. Kraus, J.), rendered January 8, 2010. The judgment convicted defendant, after a non-jury trial, of failing to yield the right of way while intending to turn left. The appeal from the judgment of conviction brings up for review an order of the same court dated January 12, 2009 denying defendant's motion to dismiss the information.
ORDERED that the judgment of conviction is affirmed.
In August 2007, defendant was charged in a simplified traffic information with failing to yield the right of way while intending to turn left (Vehicle and Traffic Law § 1141). In June 2008, the simplified traffic information was dismissed because the People had failed to provide defendant with a supporting deposition. In August 2008, the People filed an information charging defendant with the same offense. Thereafter, defendant moved to dismiss the information, which motion was denied by order dated January 12, 2009. Following a non-jury trial, defendant was convicted of failing to yield the right of way while intending to turn left.
A review of the record indicates that special circumstances existed which warranted the reprosecution of defendant upon the subsequently filed accusatory instrument charging the same offense (cf. People v Rathgeber, 23 Misc 3d 130[A], 2009 NY Slip Op 50653[U] [App Term, 9th & 10th Jud Dists 2009]; People v Berger, 16 Misc 3d 133[A], 2007 NY Slip Op 51498 [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]). Consequently, defendant's motion to dismiss the information was properly denied.
The evidence adduced at trial, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 ), was legally sufficient to establish all of the elements of failing to yield the right of way while intending to turn left (Vehicle and Traffic Law § 1141) beyond a reasonable doubt. Furthermore, in fulfilling this court's responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342, 348-349 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 ; People v Bleakley, 69 NY2d 490, 494 ). Upon a review of the record, we find that the verdict was not against the weight of the credible evidence (see People v Romero, 7 NY3d 633, 643-646 ).
Tanenbaum, J.P., LaCava and Iannacci, JJ., concur. Decision
Date: May 20, 2011
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