Opinion
2019-1524 S CR
05-27-2021
The People of the State of New York, Respondent, v. Edmundo J. Maltez, Appellant.
Edmundo J. Maltez, appellant pro se. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Unpublished Opinion
Edmundo J. Maltez, appellant pro se.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, TIMOTHY S. DRISCOLL, JJ.
Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Allen S. Mathers, J.H.O.), rendered September 3, 2019. The judgment, after a nonjury trial, convicted defendant 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 [d]) for driving a vehicle at 67 miles per hour (mph) in a 45-mph zone. At a nonjury trial, a police officer testified that he had been qualified to visually estimate the rate of vehicular speed within five mph of the actual speed. He stated, among other things, that he visually estimated that defendant had been traveling 70 mph in a 45-mph zone and that he then used a radar device which measured defendant's speed at 67 mph. The radar unit's accuracy was established by proof of the police officer's training and by the tests he conducted indicating that the radar unit was functioning properly at the time of the incident (see People v Les, 36 Misc.3d 138 [A], 2012 NY Slip Op 51439[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).
Defendant testified that there were no lights on the road. Defendant claimed to have several videos that would establish that there was no lighting on the roadway where the incident occurred. He neither offered these videos into evidence nor laid the foundation for their admission.
Following the trial, the court found defendant guilty of traveling 67 mph in a 45-mph zone and imposed a fine in the amount of $300. Defendant filed an affidavit of errors alleging that the People had failed to establish his guilt beyond a reasonable doubt and the verdict was against the weight of the evidence. Additionally, he alleged that he had been deprived of a fair trial because his video evidence was not admitted into evidence.
Here, the officer's testimony that, as a qualified operator, he had used a radar device that was working properly to measure defendant's speed at 67 mph in a posted 45-mph zone, sufficed independently to prove a violation of Vehicle and Traffic Law § 1180 (d) (see People v Dusing, 5 N.Y.2d 126, 128 [1959]; People v Goess, 34 Misc.3d 152 [A], 2012 NY Slip Op 50303[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v Susana, 29 Misc.3d 144 [A], 2010 NY Slip Op 52218[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]).
Moreover, even if the proof of the testing of the radar's operation was inadequate, a reading from an untested radar unit, coupled with a qualified officer's visual estimate, suffices to prove the offense, particularly if the visual estimate sufficiently corroborated the radar measurement to render "any perceived deficiency in the radar evidence... of no consequence" (People v Knight, 72 N.Y.2d 481, 488 [1988]; see also People v Goess, 34 Misc.3d 152 [A], 2012 NY Slip Op 50303[U], *2; People v Susana, 29 Misc.3d 144 [A], 2010 NY Slip Op 52218[U], *2; People v Ramaker, 9 Misc.3d 131 [A], 2005 NY Slip Op 51592[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]). Thus, the officer's testimony that he had received training to visually estimate, from either stationary or moving positions, the rate of speed of a vehicle at plus or minus five mph and that he had determined defendant's rate of speed to be 70 mph, which was close to the 67 mph rate that the radar unit had measured, was sufficient to prove a violation of Vehicle and Traffic Law § 1180 (d) (see People v Knight, 72 N.Y.2d at 488). In any event, the officer's testimony that he had visually estimated the speed of defendant's vehicle, which exceeded the speed limit by more than 20 mph, was alone sufficient to establish defendant's guilt beyond a reasonable doubt (see People v Olsen, 22 N.Y.2d 230, 232 [1968]).
To the extent that defendant contends that the verdict of guilt was against the weight of the evidence because the officer's testimony was not credible, 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]).
Defendant's remaining contention lacks merit.
Accordingly, the judgment of conviction is affirmed.
RUDERMAN, P.J., GARGUILO and DRISCOLL, JJ., concur.