Opinion
2020-602 S CR
09-23-2021
The People of the State of New York, Respondent, v. Douglas A. Espinal, 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Unpublished Opinion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: TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ.
Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Patricia M. Filiberto, J.H.O.), rendered January 24, 2020. The judgment convicted defendant, after a nonjury trial, of using a portable electronic device while operating a motor vehicle while the vehicle is in motion, and imposed sentence. The appeal from the judgment of conviction brings up for review that court's postconviction suspension of defendant's driver's license.
ORDERED that the judgment of conviction is affirmed.
Following a nonjury trial, defendant was found guilty of using a portable electronic device while operating a motor vehicle while the vehicle is in motion (Vehicle and Traffic Law § 1225-d [1]), and he was fined $150 and his driver's license was suspended for six months (see Vehicle and Traffic Law § 510 [3] [a]).
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 crime, for even if the prosecution's witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt" (id. at 349). If a finding in favor of the 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]).
Insofar as is relevant to this appeal, Vehicle and Traffic Law § 1225-d (1) provides that "no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion." A "portable electronic device" is defined as including a "hand-held mobile telephone" (Vehicle and Traffic Law § 1225-d [2] [a]). Additionally, "[a] person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle... is presumed to be using such device... [and t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not using the device within the meaning of this section" (Vehicle and Traffic Law § 1225-d [4]; see Vehicle and Traffic Law § 1225-d [2] [b] [defining the word "using"]).
Here, a Suffolk County Police Officer testified at trial that he had observed defendant driving a tractor trailer on a public highway while holding a black iPhone in his right hand above the steering wheel. Consequently, the officer's testimony was legally sufficient to invoke the presumption that defendant was "using" a portable electronic device within the meaning of Vehicle and Traffic Law § 1225-d (2) (b) (see Vehicle and Traffic Law § 1225-d [1], [4]; People v Vogt, 70 Misc.3d 30 [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; People v Hakim, 60 Misc.3d 137 [A], 2018 NY Slip Op 51112[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). The burden was then on defendant to rebut that presumption by demonstrating that he was not "using" such a device within the meaning of Vehicle and Traffic Law § 1225-d (2) (b) (see Vehicle and Traffic Law § 1225-d [4]; People v Scheck, 65 Misc.3d 131 [A], 2019 NY Slip Op 51571[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Defendant's testimony created an issue of fact (see Lane, 7 N.Y.3d at 890; People v Romero, 7 N.Y.3d 633, 644-645 [2006]; Hakim, 60 Misc.3d 137[A], 2018 NY Slip Op 51112[U]; People v Devaul, 60 Misc.3d 130 [A], 2018 NY Slip Op 50993[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]), which the court implicitly resolved against defendant. On appeal, defendant has not provided a basis in the record to overturn the court's credibility determination and, upon an independent review of the record, we are satisfied that the guilty verdict was not against the weight of the evidence (see Scheck, 65 Misc.3d 131[A], 2019 NY Slip Op 51571[U]; Hakim, 60 Misc.3d 137[A], 2018 NY Slip Op 51112[U]; Devaul, 60 Misc.3d 130[A], 2018 NY Slip Op 50993[U]).
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 People v Gold, 42 Misc.3d 139 [A], 2014 NY Slip Op 50173[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Bellamy, 5 Misc.3d 131 [A], 2004 NY Slip Op 51347[U] [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 Coleman, 62 Misc.3d 127 [A], 2018 NY Slip Op 51857[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Youngelman, 52 Misc.3d 136[A], 2016 NY Slip Op 51050[U]).
Contrary to defendant's contention, Vehicle and Traffic Law § 510 (3) (a) authorizes the suspension of a driver's license by the court upon a judgment convicting a driver of violating Vehicle and Traffic Law § 1180 (b) (see also Penal Law § 60.30), and Vehicle and Traffic Law § 1690 (1) authorizes a judicial hearing officer to "entertain the case in the same manner as a court" (see People v Cataldo, 57 Misc.3d 153 [A], 2017 NY Slip Op 51597[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see generally Matter of Dolce v Nassau County Traffic and Parking Violations Agency, 7 N.Y.3d 492 [2006]). Additionally, an appellate court can review a claim pertaining to a court's postconviction license suspension on appeal "as part of the judgment of conviction" (Penal Law § 60.30; see generally People v Nieves, 2 N.Y.3d 310, 315 [2004]).
We find that the suspension issued in this matter was permissive, pursuant to Vehicle and Traffic Law § 510 (3) (a), rather than mandatory (see Vehicle and Traffic Law § 510 [2] [b] [xvi], [xvii]) and, thus, the length of the suspension was not statutorily mandated. Prior to suspending defendant's license, the court examined his driver's abstract and noted for the record that, as a tractor trailer truck driver, defendant has a heightened responsibility. Based on this aggravating factor, it was not an improvident exercise of discretion for the court to have suspended defendant's license for a period of six months (see People v Crowley, 66 Misc.3d 133 [A], 2019 NY Slip Op 52115[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Moreover, contrary to defendant's contention, the imposition of both a fine and a driver's license suspension does not violate the constitutional protection against double jeopardy.
Defendant's constitutional challenge to CPL 350.20 (5) (see also Vehicle and Traffic Law § 1690 [1]), which authorizes a referral for trial to a judicial hearing officer without consent of the parties, was not raised in the District Court. Consequently, this challenge is not preserved for appellate review and will not be reviewed on this appeal (see CPL 470.05 [2]; People v Iannelli, 69 N.Y.2d 684, 685 [1986]; People v Reyes, 4 A.D.3d 541 [2004]; People v Bruce-Ross, 59 Misc.3d 143 [A], 2018 NY Slip Op 50696[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
Defendant's contention pertaining to the imposition of an administrative fee is not preserved for appellate review, as he failed to raise an objection in the District Court when it imposed the fee (see CPL 470.05 [2]; People v Massian, 60 Misc.3d 134 [A], 2018 NY Slip Op 51049[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). In any event, it is without merit (see General Municipal Law § 370 [3]; Code of Suffolk County §§ 818-77 [A]; 818-78 [2]; People v Ruiz, 64 Misc.3d 127[A], 2019 NY Slip Op 50984[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; Massian, 60 Misc.3d 134[A], 2018 NY Slip Op 51049[U]; People v Gray, 58 Misc.3d 155 [A], 2018 NY Slip Op 50184[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
Accordingly, the judgment of conviction is affirmed.
RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur.