Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John DeLury, J.H.O.), rendered May 21, 2010.
People v Khurshudyan (Arthur)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2012
PRESENT: RIOS, J.P., WESTON and GOLIA, JJ
The judgment convicted defendant, after a non-jury trial, of reckless driving.
ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
The People charged defendant with reckless driving (Vehicle and Traffic Law § 1212). At a non-jury trial, the prosecution's sole witness testified that defendant had crossed double yellow lines without signaling and, while in the opposing lane of traffic, had passed three or four slow-moving vehicles before re-entering his proper lane of travel. Defendant was found guilty as charged and, on appeal, argues, among other matters, that the evidence was legally insufficient to support the conviction, and that the conviction was, in any event, against the weight of the evidence.
While defendant failed to preserve for appellate review his claim that
the trial evidence was legally insufficient to prove that he violated
the reckless driving statute (CPL 470.05 ; People v Hawkins, 11
NY3d 484, 491-492 ; People v Gray, 86 NY2d 10, 19 ), in
the exercise of our authority to review the weight of the evidence
(CPL 470.15 ; People v Danielson, 9 NY3d 342, 348-349 ), we
agree that, assessed in light of the elements of the offense, the
verdict, following the non-jury trial, was against the weight of the
evidence (see People v Danielson, 9 NY3d 342). Although the officer's
testimony may have established that defendant committed multiple
traffic infractions, there was insufficient evidence that defendant's
operation of his vehicle "unreasonably interfere[d]" with anyone's use
of the oncoming lane or the lane from which he left and returned, or
that he thereby "unreasonably endangere[d]" anyone or anyone's
property (Vehicle and Traffic Law § 1212; compare People v Lamphear,
35 AD2d 305, 308 , and People v Delvois (Marco), 32 Misc 3d
133[A], 2011 NY Slip Op 51443[U] [App Term, 2d, 11th
& 13th Jud Dists 2011], with People v Bulgin, 29 Misc 3d 286, 295-296
[Sup Ct, Bronx County 2010], and People v Dipoumbi, 23 Misc 3d 1127[A],
2009 NY Slip Op 50974[U] [Crim Ct, NY County 2009]). Accordingly,
the judgment of conviction is reversed and the accusatory instrument dismissed.
In light of this determination, we need not address defendant's remaining contention.
Rios, J.P., and Weston, J., concur.
Golia, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM 2nd, 11th and ...