Opinion
No. 2022-930 OR CR
04-11-2024
The People of the State of New York, Respondent, v. Herman Wagschal, Appellant.
Herman Wagschal, appellant pro se. John E. Bach, Jr., for respondent (no brief filed).
Unpublished Opinion
Herman Wagschal, appellant pro se.
John E. Bach, Jr., for respondent (no brief filed).
PRESENT: TIMOTHY S. DRISCOLL, J.P., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
Appeal from judgments of the Justice Court of the Town of Blooming Grove, Orange County (Stephen J. Smith, J.), rendered October 12, 2022. The judgments convicted defendant, after a nonjury trial, of failing to stop at a stop sign, failing to yield the right of way at a stop sign, and failing to signal, respectively, and imposed sentences.
ORDERED that the judgments of conviction are affirmed.
Defendant was charged, in separate simplified traffic informations, with failing to stop at a stop sign (Vehicle and Traffic Law § 1172 [a]), failing to yield the right of way at a stop sign (Vehicle and Traffic Law § 1142 [a]), and failing to signal (Vehicle and Traffic Law § 1163 [d]). While issuing the tickets, the officer also provided defendant with a supporting deposition for each simplified traffic information. Defendant returned the tickets, each bearing his not guilty plea and his request for a supporting deposition pursuant to CPL 100.25 (2). Within days of the court receiving defendant's request, the officer filed the supporting depositions with proof of service indicating that he had personally served defendant with the same while issuing the tickets. Following a nonjury trial, the Justice Court convicted defendant of all charges.
When a defendant is charged in a simplified traffic information with a Vehicle and Traffic Law violation and makes a timely request for a supporting deposition, he or she is entitled, as of right, to receive a supporting deposition of the complainant police officer and, upon such request, the court must order the complainant police officer to, among other things, "file such supporting deposition with the court together with proof of service thereof" (CPL 100.25 [2]; see People v Nuccio, 78 N.Y.2d 102 [1991]; People v Wagschal, 59 Misc.3d 29, 30-31 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Here, within days of the court's receipt of defendant's request, the officer filed the supporting depositions with proof of service certifying that he had personally served defendant the supporting depositions during the traffic stop, satisfying the People's obligations under CPL 100.25 (2) (see Wagschal, 59 Misc.3d at 30-31; People v Key, 87 Misc.2d 262, 266 [App Term, 2d Dept, 9th & 10th Jud Dists 1978], affd 45 N.Y.2d 111 [1978]). Consequently, defendant's claim that the court should have dismissed the accusatory instruments or adjourned the matter because he did not receive a supporting deposition after his request is without merit.
Contrary to defendant's contention, the officer properly verified the supporting depositions with his electronic signature (see People v Johnson, 31 Misc.3d 145 [A], 2011 NY Slip Op 50933[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]).
To the extent defendant's arguments regarding his convictions for failing to stop at a stop sign and failing to yield the right of way at a stop sign amount to challenges to the legal sufficiency of the evidence underlying these convictions, his arguments are unpreserved, as he failed to move for a trial order of dismissal at the close of all the evidence (see CPL 470.05 [2]; People v Kolupa, 13 N.Y.3d 786, 787 [2009]; see also People v Derevyanchenko, 78 Misc.3d 42, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Nevertheless, 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]). "Necessarily, in conducting its weight of the evidence review, a court must consider the elements of the [offense], for even if the prosecution's witnesses were credible their testimony must prove the elements of the [offense] beyond a reasonable doubt" (id. at 349; see People v Thiel, 134 A.D.3d 1237 [2015]). If a finding in favor of a defendant "would not have been unreasonable" (People v Curry, 112 A.D.3d 843, 844 [2013]), this court "must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (Danielson, 9 N.Y.3d at 348). Nonetheless, great deference is accorded to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 N.Y.3d 888, 890 [2006]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]).
Vehicle and Traffic Law § 1172 (a) provides that:
"every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, then shall stop before entering the crosswalk on the near side of the intersection, or in the event there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering the intersection and the right to proceed shall be subject to the provisions of section [1142]."
Vehicle and Traffic Law § 1142 (a) provides that:
"every driver of a vehicle approaching a stop sign shall stop as required by section [1172] and after having stopped shall yield the right of way to any vehicle... which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection."
A right of way is the "right of one vehicle... to proceed in a lawful manner in preference to another vehicle... approaching under such circumstances of direction, speed and proximity as to give rise to danger of collision unless one grants precedence to the other" (Vehicle and Traffic Law § 139).
At trial, the officer testified that he observed defendant traveling west on Mountain Road as defendant approached the intersection with Route 208. The officer further testified that, after he saw the car in front of defendant stop and proceed, he observed defendant proceed past the stop sign without stopping and turn onto Route 208, cutting off both north- and south-bound traffic. During cross-examination of the officer, defendant elicited that the officer had a clear view of the stop line and that defendant failed to stop. Upon a review of the record, we find no basis to overturn the factfinder's credibility determinations and are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 643-644 [2006]).
With respect to defendant's claims of bias, he failed to interpose "any specific, relevant objections to the trial court's alleged bias" (People v Prado, 1 A.D.3d 533, 534 [2003], affd 4 N.Y.3d 725 [2004]; People v Youngelman, 52 Misc.3d 136 [A], 2016 NY Slip Op 51050[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]) and, thus, did not preserve his claims for appellate review (see CPL 470.05 [2]; People v Gold, 42 Misc.3d 139 [A], 2014 NY Slip Op 50173[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Bellamy, 5 Misc.3d 131 [A], 2004 NY Slip Op 51347[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]). In any event, there was nothing in the record to support defendant's contention that the court acted in a manner that deprived him of a fair trial or demonstrated any bias toward him (see People v Espinal, 73 Misc.3d 130 [A], 2021 NY Slip Op 50946[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Coleman, 62 Misc.3d 127 [A], 2018 NY Slip Op 51857[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Youngelman, 2016 NY Slip Op 51050[U], at *1).
Accordingly, the judgments of conviction are affirmed.
DRISCOLL, J.P., McCORMACK and WALSH, JJ., concur.