Opinion
2018-1835 S CR
06-18-2020
The PEOPLE of the State of New York, Respondent, v. Robert S. AUSTIN, Appellant.
Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Scott Lockwood, for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
PRESENT: : THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ.
ORDERED that the judgment of conviction is affirmed.
After a nonjury trial, defendant was convicted of violating Vehicle and Traffic Law § 1170 (b), which states that, "No person shall drive any vehicle through, around, or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed." A Metropolitan Transit Authority police officer testified at the trial that he had observed defendant traverse a Long Island Rail Road grade crossing after the red warning lights had begun to flash and the gate had started to close.
Preliminarily, we reject defendant's argument that "any Traffic Prosecutor" should be disqualified from appearing before this court (see General Municipal Law § 374 ; People v. Ruiz, 64 Misc 3d 127[A], 2019 NY Slip Op 50984[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v. Hernandez , 2018 NY Slip Op 63460[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ).
Defendant's argument in support of his challenge to the legal sufficiency of the evidence—that the People failed to prove that defendant had traversed the crossing while the gate was "being opened or closed"—is unpreserved for appellate review since, at trial, he failed to raise the specific argument he now makes on appeal (see CPL 470.05 [2] ; People v. Hawkins , 11 NY3d 484, 491-492 [2008] ; People v. Hines , 97 NY2d 56, 61 [2001] ; People v. Gray , 86 NY2d 10 [1995] ). In any event, defendant's contention is without merit.
Defendant also argues that the verdict was against the weight of the evidence because, among other things, there was a discrepancy in the proof regarding the time at which the incident took place. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.05 [2] ; People v. Danielson , 9 NY3d 342, 348-349 [2007] ), and assuming that an acquittal would not have been unreasonable (see People v. Romero , 7 NY3d 633, 643 [2006] ), we "must weigh the relative probative forces of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Asvazadourain , 59 Misc 3d 137[A], 2018 NY Slip Op 50567[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ). In so doing, we nevertheless accord great deference to the opportunity of the factfinder to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v. Mateo , 2 NY3d 383, 410 [2004] ; People v. Bleakley , 69 NY2d 490, 495 [1987] ). A conviction will be affirmed if it appears that the trier of fact gave the evidence the weight it should be accorded (see CPL 470.15 [5] ; People v. Danielson , 9 NY3d at 348 ; People v. Schmucker , 57 Misc 3d 156[A], 2017 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ).
Upon a review of the record, we find that the guilty verdict was not against the weight of the evidence. After defendant demonstrated that the time of the incident reflected on the simplified traffic information with which he had been contemporaneously served conflicted with the time of the incident reflected on the court copy, the People presented testimony that the TraCS system used by police officers in New York State to issue tickets from computers in their patrol cars had been switching "a.m." for "p.m." and vice versa when the tickets were electronically transmitted to the courts and involved agencies. The court determined that the incident had taken place at 6:39 a.m., as reflected by the original simplified traffic information, and accepted the ticketing officer's testimony regarding defendant's movements prior to being ticketed as credible, even though the officer had initially testified that the incident had occurred in the evening. Under the circumstances, we find that the judicial hearing officer gave the evidence the weight it should be accorded. Defendant's additional arguments with respect to the discrepancy are without merit.
Accordingly, the judgment of conviction is affirmed.
ADAMS, P.J., TOLBERT and RUDERMAN, JJ., concur.