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The People of the State of New York, Respondent v. Rajeshwar Raghubir

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.
RAJESHWAR RAGHUBIR, APPELLANT.

Appeal from a judgment of the City Court of Yonkers, Westchester County (Edward J. Gaffney, Jr., J.), rendered June 9, 2011.

People v Raghubir (Rajeshwar)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 convicted defendant, after a non-jury trial, of speeding.

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the City Court for a new trial.

The People charged defendant, in a simplified traffic information, with speeding (Vehicle and Traffic Law § 1180 [b]). Following a non-jury trial at which he appeared pro se, defendant was convicted of the charged offense. On appeal, defendant claims, among other things, that his conviction was not supported by legally sufficient evidence; that the City Court violated his constitutional right to a speedy trial; and that the City Court failed to apprise him of his rights to counsel and to an adjournment to obtain counsel.

Defendant's claim that his conviction was not supported by legally sufficient evidence is unpreserved for appellate review, as he failed to move to dismiss the charge on this ground at trial (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, the complaining officer testified that he was trained to estimate the speed of a moving vehicle to within five miles per hour of its actual speed, and that he had observed defendant traveling at 88 miles per hour on a road with a 55 mile per hour speed limit. Testimony by an officer qualified to estimate vehicle speeds to such a degree of accuracy is alone sufficient to support a speeding conviction where, as here, the variance between the officer's visual observation of the speed of the defendant's vehicle and the posted speed limit was "sufficiently wide so that the [factfinder] may be certain beyond a reasonable doubt that the defendant exceeded the permissible limit" (People v Olsen, 22 NY2d 230, 232 [1968]; see People v Moirzadeh, 31 Misc 3d 145[A], 2011 NY Slip Op 50939[U] [App Term 9th & 10th Jud Dists 2011]; People v Poltorak, 28 Misc 3d 129[A], 2010 NY Slip Op 51222[U] [App Term, 9th & 10th Jud Dists 2010]; People v Ramaker, 9 Misc 3d 131[A], 2005 NY Slip Op 51592[U] [App Term, 9th & 10th Jud Dists 2005]). Consequently, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that the evidence was legally sufficient to establish defendant's guilt of speeding beyond a reasonable doubt.

Defendant's claim that the City Court violated his constitutional right to a speedy trial "is foreclosed by [his] failure to make a motion" on that ground in the City Court (People v Arac, 297 AD2d 560, 561 [2002]; see People v Jordan, 62 NY2d 825 [1984]). In any event, there was less than a one-year delay in this case, and defendant failed to establish that his defense was impaired by reason of the delay. Consequently, defendant failed to adequately demonstrate that his constitutional right to a speedy trial had been violated (see CPL 30.20; People v Taranovich, 37 NY2d 442, 445 [1975]; People v Thomas, 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

However, we agree with defendant that the City Court erred when it failed to apprise him of his right to counsel and to an adjournment to obtain counsel. When a defendant is charged with at least one traffic infraction subjecting him to the possibility of imprisonment if convicted (see Vehicle and Traffic Law § 1180 [h] [1] [iii]), the court is required to advise him of his right to counsel (see People v Weinstock, 80 Misc 2d 510 [App Term, 9th & 10th Jud Dists 1974]; see generally People v Dean, 47 NY2d 967 [1979]). In the case at bar, the record indicates that defendant was never informed of this right. Thus, a new trial is required.

Defendant's remaining contention lacks merit.

Accordingly, the judgment of conviction is reversed and the matter is remitted to the City Court for a new trial.

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

20121224

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