Opinion
2020-239 S CR
11-04-2021
The People of the State of New York, Respondent, v. Marcella L. Flierl, Appellant.
Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Unpublished Opinion
Scott Lockwood, for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
PRESENT:: ELIZABETH H. EMERSON, J.P., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ
Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Alan M. Wolinsky, J.H.O.), rendered December 11, 2019. The judgment, after a nonjury trial, convicted defendant of speeding, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
After a nonjury trial, defendant was convicted of speeding (Vehicle and Traffic Law § 1180 [b]), the sole offense charged.
The pretrial suspension of defendant's driver's license, which can be suspended without notice pending prosecution (see Vehicle and Traffic Law § 510 [3-a]), was an administrative act which is reviewable only by the Supreme Court in an article 78 proceeding (see Vehicle and Traffic Law § 510 [7]; People v Pocrass, 57 Misc.3d 153 [A], 2017 NY Slip Op 51596[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]) and is not reviewable on a direct appeal (see CPL 450.10, 450.15; Pocrass, 2017 NY Slip Op 51596[U]).
We find that it was not an improvident exercise of discretion for the court to have denied defendant's application for recusal, which decision should not be lightly overturned as defendant did not raise a mandatory legal disqualification claim under Judiciary Law § 14 (see People v Moreno, 70 N.Y.2d 403, 405 [1987]; Matter of Khan v Dolly, 39 A.D.3d 649 [2007]; People v DeRaffele, 66 Misc.3d 41, 49 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Fehrenbach, 64 Misc.3d 130 [A], 2019 NY Slip Op 51034[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]).
To the extent that defendant's contentions pertaining to his conviction are considered legal insufficiency claims, they are not preserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 N.Y.3d 484, 492 [2008]; People v Gray, 86 N.Y.2d 10, 19 [1995]). Nonetheless, upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one appellate review of adverse factual findings" (People v Danielson, 9 N.Y.3d 342, 348 [2007]). Following a review of the record, we conclude that the verdict convicting defendant of speeding was not against the weight of the evidence (see People v Olsen, 22 N.Y.2d 230, 232 [1968]; People v Dusing, 5 N.Y.2d 126, 128 [1959]; People v Forrester, 71 Misc.3d 127 [A], 2021 NY Slip Op 50229[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Jacobs, 62 Misc.3d 126 [A], 2018 NY Slip Op 51852[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
We have reviewed defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit (see People v Espinal, ___ Misc.3d ____, 2021 NY Slip Op 50946[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; Forrester, 2021 NY Slip Op 50229[U]; People v Massian, 60 Misc.3d 134 [A], 2018 NY Slip Op 51049[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Cataldo, 57 Misc.3d 153 [A], 2017 NY Slip Op 51597[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]).
Accordingly, the judgment of conviction is affirmed.
EMERSON, J.P., DRISCOLL and VOUTSINAS, JJ., concur.