Opinion
No. 2021-640 S CR
12-22-2022
The People of the State of New York, Respondent, v. Nicholas Jackson, 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Unpublished Opinion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:: JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ
Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Kenneth Diamond, J.H.O.), rendered September 30, 2021. The judgment convicted defendant, after a nonjury trial, of speeding, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a simplified traffic information with speeding (Vehicle and Traffic Law §1180 [b]) on April 22, 2021.
At a nonjury trial, a police officer testified that he had been trained and certified to use a laser device to measure the speed of a vehicle and to visually estimate the rate of speed to within five miles per hour (mph). He estimated the rate of speed of defendant's vehicle at 85 mph in a 55 mph zone. He then used a laser device, that he tested for accuracy and found to be functioning properly, which measured defendant's speed at 83 mph. Following the trial, defendant was found guilty.
It is well settled that the testimony of a police officer qualified to visually estimate the speed of moving vehicles, standing alone, is sufficient to support a speeding conviction where the variance between the officer's visual estimate of the speed of the defendant's vehicle and the posted speed limit is "sufficiently wide, so that [the factfinder] may be certain beyond a reasonable doubt that the defendant exceeded the permissible limit" (People v Olsen, 22 N.Y.2d 230, 232 [1968]; see also People v Krasniqi, 58 Misc.3d 158[A], 2018 NY Slip Op 50245[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
Moreover, even if it be assumed that the proof of the calibration of the laser device here was inadequate, a reading from an uncalibrated laser device may sufficiently corroborate an officer's visual estimate (see People v Gray, 58 Misc.3d 155 [A], 2018 NY Slip Op 50184[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]), particularly if the visual estimate and the laser measurement are so similar as to render "any perceived deficiency in the [laser] evidence... of no consequence" (People v Knight, 72 N.Y.2d 481, 488 [1988]; see al so Krasniqi, 2018 NY Slip Op 50245[U]; Gray, 2018 NY Slip Op 50184[U]). Thus, the officer's testimony that he had received training to visually estimate the rate of speed of a vehicle to within five mph and that he had determined defendant's rate of speed to be 85 mph, which was close to the 83 mph rate that the laser unit had measured, was sufficient to prove a violation of Vehicle and Traffic Law § 1180 (b) (see Knight, 72 N.Y.2d at 488).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.05 [2]; People v Danielson, 9 N.Y.3d 342, 348-349 [2007]), while according 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 N.Y.3d 888, 890 [2006]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]), we find that the verdict convicting defendant of speeding was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 643-646 [2006]).
We further find that to the extent discovery materials were disclosed belatedly, defendant failed to show any prejudice from this alleged failure (see CPL 245.80 [1] [a]) and, thus, he was not entitled to any remedy (see People v Jateen, 74 Misc.3d 134 [A], 2022 NY Slip Op 50280[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]).
Defendant's remaining contentions relating to the trial and oral application to transfer the action to the District Court are either without merit or unpreserved for appellate review (see People v Altman, 73 Misc.3d 127 [A], 2021 NY Slip Op 50886[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]).
Accordingly, the judgment of conviction is affirmed.
GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.