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The People of the State of New York, Respondent v. Israel Gross

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


December 24, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, --
v.
ISRAEL GROSS, APPELLANT.

Appeal from a judgment of the Justice Court of the Town of Blooming Grove, Orange County (Stephen J. Smith, J.), rendered March 24, 2011.

People v Gross (Israel)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2012

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

The judgment, after a non-jury trial, convicted defendant of driving to the left side of the roadway when approaching the crest of a grade or upon a curve in the highway.

ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed, and the fine, if paid, is remitted.

Following a non-jury trial, defendant was convicted of driving to the left side of the roadway when approaching the crest of a grade or upon a curve in the highway (Vehicle and Traffic Law § 1125 [a] [1]).

Defendant did not preserve for appellate review his contention that the People failed to present legally sufficient evidence. Nevertheless, reviewing that contention in the exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]), and viewing the evidence in the light most favorable to the prosecution, we find that the evidence was legally insufficient to support defendant's conviction (see People v Farrell, 61 AD3d 696 [2009]). Legally sufficient evidence is defined as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10 [1]; see People v Mills, 1 NY3d 269, 274 [2003]; People v Bello, 92 NY2d 523, 525-526 [1998]; People v Swamp, 84 NY2d 725, 730 [1995]; People v Warren, 98 AD3d 634 [2012]). Under Vehicle and Traffic Law § 1125 (a) (1), the prosecution must establish, in addition to other elements, that "the driver's view [was] obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction." Here, the prosecution failed to establish this element of the offense, as the police officer who had issued the ticket testified only that defendant had driven his vehicle to the left side of roadway while negotiating a curve, without stating that defendant's view had been obstructed. Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

LaCava, J.P., Iannacci and LaSalle, JJ., concur. Decision Date: December 24, 2012

20121224

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