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People v. Ermmarino

Supreme Court of New York, Second Department

July 19, 2018

The People of the State of New York, Respondent,
v.
Rocco R. Ermmarino, Appellant.

          Scott Lockwood, for appellant.

          Suffolk County Traffic Prosecutor's Office, (Justin W. Smiloff), for respondent.

          PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ

         Appeal from two judgments of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Paul H. Senzer, J.H.O.), rendered January 28, 2016. The judgments convicted defendant, after a nonjury trial, of operating an unregistered motor vehicle and operating a motor vehicle upon a public highway while using a mobile telephone, respectively.

         ORDERED that the judgment convicting defendant of operating an unregistered motor vehicle is reversed, on the law, the accusatory instrument charging that offense is dismissed, as a matter of discretion in the interest of justice, and the fine, surcharge, and administrative fee, if paid, are remitted; and it is further, ORDERED that the judgment convicting defendant of operating a motor vehicle upon a public highway while using a mobile telephone is affirmed.

         On June 3, 2015, Suffolk County Police Officer William C. Murray allegedly observed defendant driving a vehicle on the Long Island Expressway in the Town of Huntington, Suffolk County, while operating a cell phone. Defendant was charged, in two simplified traffic informations, with, among other things, operating an unregistered motor vehicle (Vehicle and Traffic Law § 401 [1] [a]), and operating a motor vehicle upon a public highway while using a mobile telephone (Vehicle and Traffic Law § 1225-c [2] [a]). A supporting deposition annexed to the simplified traffic information charging defendant with operating a motor vehicle upon a public highway while using a mobile telephone stated, in part, that "[y]our deponent did witness, the above defendant did operate the above vehicle, at the above date, time, and location, a public highway while operating a mobile telephone/electronic device."

         At a nonjury trial, defendant's counsel attempted to submit a memorandum of law in connection with an oral motion to dismiss the charge of operating a motor vehicle upon a public highway while using a mobile telephone. The prosecutor objected. The court stated that it was "not considering" the motion.

         Officer Murray testified that, at approximately 8:07 a.m. on June 3, 2015, he had been in a vehicle traveling eastbound on the Long Island Expressway. A vehicle in the right lane passed him. The operator had "a black smart cellphone in his left hand up to his left ear." Murray had a clear, unobstructed view of the vehicle. He pulled the vehicle over and asked the driver for his license, registration, and proof of insurance. Murray compared the photograph on the license to the driver, which matched, and the name on the license was defendant's.

         Murray did not recall whether defendant had produced a registration. He had observed that the "vehicle registration tag was expired" because he had noticed that the "[s]tickers were expired." Murray had confirmed the expiration date of the registration with the New York State Department of Motor Vehicles using the computer in his police vehicle. Defendant's objection to this testimony on the ground that it constituted hearsay was overruled. The prosecutor asked Murray if he had had a conversation with defendant. Murray refreshed his recollection with his notes. Defendant's counsel objected, claiming that he had not been served with notice pursuant to CPL 710.30. The court replied that "this is a traffic infraction and you're not entitled to 710.30 notice." Murray testified that defendant had told him that "he was bidding for a job" and "that the plates were expired."

         During cross-examination, Murray testified that, in the supporting deposition annexed to the simplified traffic information charging defendant with operating a motor vehicle while using a mobile telephone, he did not write anything down with respect to defendant putting his "left hand up to his ear."

         Defendant testified that he had been driving home from work. He was turning on an earpiece for his phone so he could talk using the earpiece. During cross-examination, defendant testified that he did not have a cell phone in his hand. Instead, the earpiece was in his hand. He was putting it in his right ear and turning it on when he was stopped. He claimed that the device was a black "handsfree bluetooth device." He tried to identify the device after he had been stopped, but the officer "didn't want to see it."

         The court found defendant guilty of operating an unregistered motor vehicle and operating a motor vehicle upon a public highway while using a mobile telephone, and, among other things, imposed a fine of $200 on the conviction of operating an unregistered motor vehicle. The court also imposed a New York State mandatory surcharge and a Suffolk County administrative fee on each conviction. Defendant objected to the imposition of the Suffolk County administrative fee.

         On appeal, defendant contends that the allegation in the supporting deposition that he operated the vehicle on a public highway "while operating a mobile telephone/electronic device" did not provide the requisite reasonable cause. Furthermore, defendant argues that the accusatory instrument failed to allege that defendant had" 'engaged in a call,' by 'talking into or listening on a hand-held mobile telephone, '" in violation of Vehicle and Traffic Law § 1225-c (1) (f). Next, defendant argues that the court erred in refusing to entertain his oral motion to dismiss the charge of operating a motor vehicle while using a mobile telephone and refusing to accept his memorandum of law, and that he was entitled to notice of his statement because CPL 710.30 applies to traffic infractions. Defendant also argues that the officer's testimony with respect to the expired registration was improperly admitted into evidence, as it constituted hearsay and violated his right of confrontation; that the verdict of guilt was against the weight of the evidence; and that the Suffolk County administrative fees are preempted by State law.

         The People argue that defendant's oral motion to dismiss was untimely and not made on notice to the People and that the verdict of guilt was not against the weight of the evidence. With respect to the conviction of operating a motor vehicle while using a mobile telephone, "[a]n operator of any motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section," which presumption "is rebuttable by evidence tending to show that the operator was not engaged in a call" (Vehicle and Traffic Law § 1225-c [2] [b]). Defendant's testimony that he was turning on his earpiece so he could talk on it and that the earpiece was a hands-free bluetooth device did not rebut the statutory presumption, and defendant did not produce the earpiece at the trial. Addressing defendant's hearsay argument, the People contend, among other things, that Officer Murray testified as to information he had received ...


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