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The People of the State of New York v. Marco H. Delvois

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


July 27, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
MARCO H. DELVOIS,
APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John J. Delury, J.H.O.), rendered October 16, 2009. The judgment convicted defendant, after a non-jury trial, of reckless driving.

People v Delvois (Marco)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in an information with reckless driving (Vehicle and Traffic Law § 1212). At a non-jury trial, a police officer testified that he had observed defendant traveling in the left lane at a high rate of speed, tailgating the vehicle in front of him, and that defendant, without signaling and still going at a high rate of speed, had swerved in front of his marked patrol car, nearly causing a collision. Defendant denied tailgating the vehicle in front of him and driving at a high rate of speed, estimating that he had been traveling at the rate of 10 to 15 miles per hour. He also maintained that he had turned on his signal before changing lanes. The judicial hearing officer found defendant guilty of the charged offense.

In conducting our independent weight of the evidence review (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we view the evidence adduced at this non-jury trial in light of the elements of the offense and accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony and observe their demeanor (People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Ramirez, 58 AD3d 757, 758 [2009]). Here, the evidence adduced by the People demonstrated beyond a reasonable doubt that defendant had unreasonably interfered with the free and proper use of the roadway and had unreasonably endangered users thereof (see Vehicle and Traffic Law § 1212; People v Grogan, 260 NY 138, 144 [1932]; People v Lamphear, 35 AD2d 305, 308 [1970]). To the extent that defendant questions the consistency of the police officer's testimony, this contention involves an issue of credibility (see People v Tracy, 19 Misc 3d 145[A], 2008 NY Slip Op 51128[U] [App Term, 9th & 10th Jud Dists 2008]). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the credible evidence (see People v Lane, 7 NY3d 888, 890 [2006]; Romero, 7 NY3d at 644-645; Bleakley, 69 NY2d at 495; People v Cummings, 291 AD2d 454, 455 [2002]).

Defendant's contention that he was unconstitutionally denied an opportunity to present a summation is unpreserved for appellate review (see CPL 470.05 [2]; People v Kearse, 283 AD2d 262 [2001]), and does not constitute a mode of proceedings error to which the preservation requirement does not apply (cf. People v Ahmed, 66 NY2d 307, 310 [1985]). Moreover, his argument that CPL 350.10 (3) (c) is unconstitutional is likewise unpreserved (see CPL 470.05 [2]).

Defendant's contention that he was not afforded an opportunity to address the court at the time of his sentencing, in violation of CPL 380.50 (1), is also unpreserved (see People v Green, 54 NY2d 878, 880 [1981]; People v Chin, 69 AD3d 752 [2010]; People v Liebesman, 28 Misc 3d 126[A], 2010 NY Slip Op 51172[U] [App Term, 9th & 10th Jud Dists 2010]).

Accordingly, the judgment of conviction is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: July 27,2011

20110727

© 1992-2011 VersusLaw Inc.



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