Opinion
No. 2018-1908 K CR
03-24-2023
The People of the State of New York, Respondent, v. Andriy Derevyanchenko, Appellant.
Mark Diamond, for appellant. Kings County District Attorney (Leonard Joblove, Seth Lieberman and Ann Bordley of counsel), for respondent.
Mark Diamond, for appellant.
Kings County District Attorney (Leonard Joblove, Seth Lieberman and Ann Bordley of counsel), for respondent.
PRESENT: CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, LOURDES M. VENTURA, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Elizabeth N. Warin, J.), rendered August 3, 2018. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired, disobeying a traffic control device and speeding, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in an accusatory instrument with driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), disobeying a traffic control device (Vehicle and Traffic Law § 1110 [a]), and speeding (Vehicle and Traffic Law § 1180 [a]) for conduct that allegedly occurred on June 24, 2017. Subsequently, defendant filed a motion to dismiss the accusatory instrument upon statutory and constitutional speedy trial grounds. Without conceding that they had exceeded their statutory speedy trial time for prosecuting a misdemeanor, the People made an application to dismiss the driving while intoxicated (common law) charge and defendant withdrew the motion. Following a nonjury trial, defendant was convicted of the remaining charges, all traffic infractions.
Since defendant withdrew his speedy trial motion, his speedy trial claim is not reviewable by this court. Even if it were, we note that, prior to January 1, 2020, it had been the rule that a defendant had no statutory right to a speedy trial for the prosecution of a traffic infraction (see People v Harvey, 76 Misc.3d 134 [A], 2022 NY Slip Op 50932[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; People v O'Halloran, 40 Misc.3d 133[A], 2013 NY Slip Op 51142[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v Graham, 39 Misc.3d 35 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Effective January 1, 2020, the legislature amended CPL 30.30 to add CPL 30.30 (1) (e), which states that the term "offense" includes traffic infractions for the purpose of subdivision 1 of CPL 30.30. In People v Galindo (38 N.Y.3d 199, 206-207 [2022]), the Court of Appeals held that the statutory speedy trial provisions of CPL 30.30, as amended effective January 1, 2020, do not apply retroactively to prosecutions commenced before its effective date. Consequently, because the amended statute was not in effect when the instant action against defendant was commenced in 2017, statutory speedy trial time does not apply to the traffic infractions of which defendant was convicted (see Galindo, 38 N.Y.3d at 207; Harvey, 2022 NY Slip Op 50932[U]).
Defendant's challenge to the legal sufficiency of the evidence presented to support his conviction of driving while ability impaired is preserved for appellate review since, when moving for a trial order of dismissal, he raised, with specificity, the same contentions now being argued on appeal (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]). Vehicle and Traffic Law § 1192 (1) provides that "[n]o person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." To establish a prima facie case, the People were required to show that defendant operated a motor vehicle while his ability to do so was impaired by the consumption of alcohol (see Vehicle and Traffic Law § 1192 [1]; People v Cruz, 48 N.Y.2d 419, 426 [1979]; People v Wirtz, 128 A.D.2d 745, 746 [1987]). A person's ability to operate a motor vehicle is impaired by the consumption of alcohol when the alcohol has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver (see People v Litto, 8 N.Y.3d 692, 706 [2007]; Cruz, 48 N.Y.2d at 427; People v Scott, 60 Misc.3d 128 [A], 2018 NY Slip Op 50939[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
Here, the arresting officer testified that he observed the vehicle that defendant was driving accelerate and swerve into the opposite lane of traffic by crossing solid double yellow lines that were painted on the roadway. He further testified that defendant came very close to hitting a parked car before pulling over. After stopping defendant, the officer observed defendant to have bloodshot watery eyes, slurred speech, and he smelled a strong odor of alcohol on defendant's breath. The officer further observed defendant wobble upon exiting the vehicle. Defendant admitted to the arresting officer that he had drunk a beer. Additionally, a certified technician at the Police Department's Intoxicated Drivers Testing Unit testified to having observed similar indicia of intoxication when defendant was brought in for testing. Both officers opined that defendant was intoxicated. Viewing the foregoing evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620 [1983]), we find that there is a valid line of reasoning and permissible inferences from which a rational trier of fact could have determined that defendant's guilt of driving while ability impaired was proven beyond a reasonable doubt (see People v Bryan, 63 Misc.3d 156 [A], 2019 NY Slip Op 50821[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Scott, 2018 NY Slip Op 50939[U]). Additionally, upon a review of the record, we find no basis to disturb the Criminal Court's credibility determinations and, as a result, we are satisfied that the verdict of guilt of driving while ability impaired was not against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d 342 [2007]; Scott, 2018 NY Slip Op 50939[U]).
Defendant contends that the count of disobeying a traffic control device, as charged in the prosecutor's information, was jurisdictionally defective since it failed to specify that the traffic control device which he was alleged to have disobeyed was solid double yellow lines. This contention is without merit since the prosecutor's information was supported by the allegations of the factual part of the original information (see CPL 100.50 [2]; People v Dublin, 71 Misc.3d 133 [A], 2021 NY Slip Op 50358[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]), which did allege this fact.
Defendant's challenge to the legal sufficiency of the evidence presented to establish his guilt of disobeying a traffic control device is also preserved for appellate review (see CPL 470.05 [2]; Hawkins, 11 N.Y.3d at 492; Gray, 86 N.Y.2d at 19). Vehicle and Traffic Law § 153 defines traffic control devices as "[a]ll signs, signals, markings, and devices not inconsistent with this chapter placed or erected by authority of a public body or official having jurisdiction for the purpose of regulating, warning or guiding traffic." Thus, as the Criminal Court correctly determined, solid double yellow line pavement markings are considered to be a traffic control device for purposes of Vehicle and Traffic Law § 1110 (see People v Quiros, 66 Misc.3d 142 [A], 2020 NY Slip Op 50167[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]). While defendant contends that there was no evidence presented at trial that the double yellow lines on the roadway were placed by authority of a public body or official having jurisdiction for the purpose of regulating, warning or guiding traffic, Vehicle and Traffic Law § 1110 (c) creates a presumption in favor of the People that they were so placed and, here, defendant did not establish "the contrary... by competent evidence" (see People v Guthrie, 25 N.Y.3d 130, 140 [2015]; see also Vehicle and Traffic Law § 1110 [d]). Consequently, when viewed in the light most favorable to the People (see Contes, 60 N.Y.2d at 621), the evidence was legally sufficient to establish defendant's guilt of violating Vehicle and Traffic Law § 1110 (a). Moreover, upon a review of the record, we find that the verdict convicting defendant of disobeying a traffic control device was not against the weight of the evidence.
Defendant's challenge to the legal sufficiency of the evidence presented to support his conviction of speeding is not preserved for appellate review since, when moving for a trial order of dismissal, he failed to raise, with specificity, the same contention now being argued on appeal (see CPL 470.05 [2]; Hawkins, 11 N.Y.3d at 492; Gray, 86 N.Y.2d at 19). We further find that the verdict convicting defendant of violating Vehicle and Traffic Law § 1180 (a) was not against the weight of the evidence (see CPL 470.15 [5]; Danielson, 9 N.Y.3d 342; People v Romero, 7 N.Y.3d 633 [2006]).
Accordingly, the judgment of conviction is affirmed.
BUGGS, J.P., OTTLEY and VENTURA, JJ., concur.