Opinion
2020-597 S CR
09-16-2021
The People of the State of New York, Respondent, v. Randolph Altman, Appellant.
Lavallee Law Office, PLLC (Keith A. Lavallee of counsel), for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Unpublished Opinion
MOTION DECISION
Lavallee Law Office, PLLC (Keith A. Lavallee of counsel), for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
PRESENT JERRY GARGUILO, J.P., 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 (Debra Urbano-DeSalvo, J.H.O.), rendered March 10, 2020. 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 in that he drove a vehicle at 98 miles per hour (mph) in violation of Vehicle and Traffic Law § 1180 (b), which provides, in part, that "no person shall drive a vehicle at a speed in excess of fifty-five miles per hour." Prior to the start of trial, defendant's attorney made an oral motion to dismiss the accusatory instrument on the ground that defendant's statutory right to a speedy trial had been violated (see CPL 170.30 [2]; 1.20 [11]). The People opposed the motion without making any procedural objection, which motion the court denied.
At the nonjury trial, a trooper testified that he had received training in the visual estimation of the speed of moving vehicles and that he could estimate such speed to within five mph of the vehicle's actual speed; that he has been a trooper for over 13 years and every day he has had to make visual estimations of the speed of moving vehicles, up to 20 to 30 times a day; that he visually estimated the speed of defendant's vehicle to be 100 mph; that his radar device, which he had tested the same day as the incident and found to be in proper working order, indicated that the speed of defendant's vehicle was 98 mph; and that the radar device could determine the speed of a vehicle within one mph of the vehicle's actual speed. Following the trial, the court found defendant guilty of driving a vehicle at 97 mph, and sentenced him to a 30-day driver's license suspension and a $300 fine. An affidavit of errors and court's return were subsequently submitted. On appeal, defendant contends that his trial attorney's oral statutory speedy trial motion should have been granted; that the evidence was legally insufficient; that the verdict was against the weight of the evidence; and that his sentence was excessive.
While the judgment of conviction was rendered prior to the enactment of the 2020 amendments to CPL 30.30, we need not decide whether the newly enacted CPL 30.30 (1) (e) should be applied retroactively here since defendant was charged solely with a traffic infraction and the 30-day speedy trial time period of CPL 30.30 (1) (d) would only be applicable if (1) the accusatory instrument accuses defendant of one or more offenses, (2) one or more of the offenses is a violation, and (3) no offense is a crime. Although CPL 30.30 (1) (e) provides that for purposes of that subdivision, a traffic infraction is an offense, and Vehicle and Traffic Law § 155 provides that a traffic infraction is not a crime, Penal Law § 10.00 (3) defines a violation as "an offense, other than a 'traffic infraction.'" Consequently, since the accusatory instrument did not also charge defendant with a violation, the court properly denied defendant's motion.
Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review since, at trial, he failed to raise the specific arguments he now makes on appeal (see CPL 470.05 [2]; People v Hawkins, 11 N.Y.3d 484, 491-492 [2008]; People v Hines, 97 N.Y.2d 56, 61 [2001]; People v Gray, 86 N.Y.2d 10 [1995]; People v Bynum, 70 N.Y.2d 858 [1987]; People v Udzinski, 146 A.D.2d 245, 250 [1989]), and we decline to review this contention in the interest of justice. Nevertheless, since there is no preservation requirement associated with defendant's contention that the verdict by the court was against the weight of the evidence, when requested by a defendant, this court necessarily determines whether all of the elements of the crime charged were proven beyond a reasonable doubt as part of its weight of the evidence review (see People v Danielson, 9 N.Y.3d 342, 348-349 [2007]; People v Thiel, 134 A.D.3d 1237 [2015]). Upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d at 348-349), 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 contends that, given his lack of a prior record, the imposition of a 30-day driver's license suspension and a $300 fine was excessive. However, since defendant's affidavit of errors does not raise any issue regarding the excessiveness of the fine, this issue has not been preserved for appellate review (see People v Klein, 7 N.Y.2d 264 [1959]; People v Sloane, 59 Misc.3d 143 [A], 2018 NY Slip Op 50697[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Rozario, 20 Misc.3d 76, 83 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]), and defendant is not challenging the legality of the sentence (cf. People v Samms, 95 N.Y.2d 52, 56 [2000]). In any event, we find that defendant's sentence was neither harsh nor excessive (see People v Suitte, 90 A.D.2d 80, 85 [1982]), and no extraordinary circumstances exist that warrant a modification of the sentence in the interest of justice (see People v Hodges, 13 A.D.3d 979 [2004]; People v Dolphy, 257 A.D.2d 681 [1999]).
Accordingly, the judgment of conviction is affirmed.
GARGUILO, J.P., EMERSON and DRISCOLL, JJ., concur.