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The People of the State of New York v. Eleanor Yankovich

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


April 8, 2013

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
ELEANOR YANKOVICH,
APPELLANT.

Appeal from judgments of the Justice Court of the Town of Putnam Valley, Putnam County (Louis DiCarlo, J.), rendered January 13, 2011.

People v Yankovich (Eleanor)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2013

PRESENT: IANNACCI, J.P., MARANO and TOLBERT, JJ

The judgments convicted defendant, after a non-jury trial, of failure to dim headlights and driving while ability impaired, respectively.

ORDERED that the judgment convicting defendant of failure to dim headlights is reversed, on the facts, and the accusatory instrument charging that offense is dismissed; and it is further,

ORDERED that the judgment convicting defendant of driving while ability impaired is affirmed.

Defendant was charged in three separate simplified traffic informations with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), failure to dim headlights (Vehicle and Traffic Law § 375 [3]), and operating a vehicle without a valid license (Vehicle and Traffic Law § 509 [1]), respectively. Prior to the start of the non-jury trial, the charge of driving while intoxicated was reduced to driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). After trial, defendant was convicted of driving while ability impaired and failure to dim headlights.

Contrary to defendant's argument on appeal, the arresting officer had probable cause to stop defendant's vehicle. A police officer may lawfully stop a vehicle based upon probable cause to believe that there has been a Vehicle and Traffic Law violation (see People v Robinson, 97 NY2d 341, 348-349 [2001]). The officer testified at a suppression hearing that, as the result of defendant's use of her high beams when her vehicle had passed his vehicle on the road, he "had to take some evasive action," he couldn't see, and "it caused [him] to go off the road." This testimony was sufficient to establish probable cause to believe that there had been a violation of Vehicle and Traffic Law § 375 (3), in that high beams were used within 500 feet of an approaching vehicle which usage had interfered with the vision of the driver of the approaching vehicle (see People v Meola, 7 NY2d 391, 395 [1960]).

Defendant's argument that the evidence was legally insufficient to support the verdict is unpreserved for appellate review. While defense counsel interposed a general motion for a trial order of dismissal, this does not preserve the particular challenges to the legal sufficiency of the evidence raised on appeal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Sweeney, 84 AD3d 1123, 1123 [2011]; People v Rivera, 74 AD3d 993, 993 [2010]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of driving while ability impaired beyond a reasonable doubt. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we 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 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we are satisfied that the verdict as to that charge was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

On the other hand, at trial, the People failed to proffer any testimony to support a finding that defendant's use of her high beams had interfered with the officer's vision (see Vehicle and Traffic Law § 375 [3]; Meola, 7 NY2d at 395). Consequently, upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342), we find that the verdict as to that charge was against the weight of the evidence. We "determine firstly, that an acquittal . . . would not have been unreasonable based upon the evidence presented, and secondly, that the trial court failed to accord the evidence the weight it should have been accorded" (People v Zephyrin, 52 AD3d 543, 543 [2008]; see People v Danielson, 9 NY3d at 348).

In view of the foregoing, the judgment convicting defendant of failure to dim headlights is reversed and the accusatory instrument charging that offense is dismissed, and the judgment convicting defendant of driving while ability impaired is affirmed.

Iannacci, J.P., Marano and Tolbert, JJ., concur. Decision Date: April 08, 2013

20130408

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