Opinion
2016-624 S CR
12-13-2018
The PEOPLE of the State of New York, Respondent, v. Rachel A. FULMER, Appellant.
Judith Ellen Stone, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Judith Ellen Stone, for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ.
ORDERED that the judgment convicting defendant of unsafely backing up a vehicle is reversed, on the law and facts, the accusatory instrument charging that offense is dismissed, and the fine, if paid, is remitted; and it is further,
ORDERED that the judgments convicting defendant of driving a motor vehicle with an obstructed view, operating a motor vehicle with improper license plates, operating an unregistered motor vehicle, and operating an uninsured motor vehicle are reversed, on the law, and the matters are remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency for a new trial on those charges.
In October 2015, defendant was charged in five simplified traffic informations with unsafely backing up a vehicle ( Vehicle and Traffic Law § 1211 [a] ), driving a motor vehicle with an obstructed view ( Vehicle and Traffic Law § 1213 [a] ), operating a motor vehicle with improper license plates ( Vehicle and Traffic Law § 402 [4 ] ), operating an unregistered motor vehicle ( Vehicle and Traffic Law § 401 [1 ] [a] ), and operating an uninsured motor vehicle ( Vehicle and Traffic Law § 319 ), respectively. Following a nonjury trial, defendant was convicted of all charges.
Defendant's contention, in effect, that the evidence was legally insufficient to establish her guilt of unsafely backing up a vehicle ( Vehicle and Traffic Law § 1211 [a] ) is unpreserved for appellate review, since she failed to make any argument to this effect during trial (see CPL 470.05 [2 ]; People v. Hawkins , 11 N.Y.3d 484, 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001] ; People v. Gray , 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, since there is no preservation requirement associated with defendant's contention that the verdict convicting her of that offense was against the weight of the evidence in this nonjury trial, we necessarily must determine whether all of the elements of that offense were proven beyond a reasonable doubt at the nonjury trial as part of that review (see People v. Danielson , 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Thiel , 134 A.D.3d 1237, 21 N.Y.S.3d 745 [2015] ). Upon a review of the record, we find that a different verdict would not have been unreasonable in the case at bar (see People v. Zephyrin , 52 A.D.3d 543, 860 N.Y.S.2d 149 [2008] ), as the testimony of the police officer and defendant presented a "classic he-said she-said credibility determination for the [trier of fact] to resolve" ( People v. Kiah , 156 A.D.3d 1054, 1056, 67 N.Y.S.3d 337 [2017] [internal quotation marks and citation omitted] ). Consequently, we "must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ " ( People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987], quoting People ex rel. MacCracken v. Miller , 291 N.Y. 55, 62, 50 N.E.2d 542 [1943] ).
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, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; People v. Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), we find that the weight of the evidence fails to support the verdict convicting defendant of unsafely backing up a vehicle in violation of Vehicle and Traffic Law § 1211 (a), since the testimony provided by the police officer did not establish that the backward movement of defendant's vehicle was not "made with safety" or "interfer[ed] with other traffic" (see People v. Taylor , 104 A.D.3d 961, 962, 961 N.Y.S.2d 566 [2013] ; People v. Rivera , 43 Misc. 3d 141(A), 2014 N.Y. Slip Op. 50816(U), 2014 WL 2178886 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2014] ). Consequently, the judgment convicting defendant of that offense must be reversed and the accusatory instrument charging that offense must be dismissed.
After the District Court informed defendant of her right to call witnesses to testify on her behalf, defendant stated that she wanted her six-year old daughter to testify. The court replied that it would not allow defendant's daughter to testify because of her age. Defendant then stated that it was "imperative that [her daughter] be able to at least say what was said—," however the remainder of defendant's statement was interrupted. The court said that it was basing its determination on defendant's statements that the incident had caused her daughter "a lot of duress mentally and emotionally," and because her daughter was present in the courtroom during the testimony of the police officer, the People's sole witness. It is well settled that "the right to present evidence by witnesses of one's own choosing is a fundamental ingredient of due process" ( People v. Gilliam , 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129 [1975], revg on dissenting op. of Hopkins, J. , 45 A.D.2d 744, 745, 356 N.Y.S.2d 663 [1975] ; see People v. Williams , 81 N.Y.2d 303, 312, 598 N.Y.S.2d 167, 614 N.E.2d 730 [1993] ; People v. Arena , 106 A.D.3d 1445, 1446, 964 N.Y.S.2d 383 [2013] ; People v. Pitt , 84 A.D.3d 1275, 1276, 924 N.Y.S.2d 121 [2011] ; see also Chambers v. Mississippi , 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 [1973] ; Jenkins v. McKeithen , 395 U.S. 411, 429, 89 S.Ct. 1843, 23 L.Ed.2d 404 [1969] ; Washington v. Texas , 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 [1967] ), and such evidence should not be prospectively excluded unless it is offered in palpably bad faith (see People v. Gilliam , 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129 ; People v. Arena , 106 A.D.3d at 1446, 964 N.Y.S.2d 383 ). When a defendant seeks to call a witness, and no bad faith has been shown, the witness should be sworn and asked questions, to permit the court, upon proper objection, to rule upon the admissibility of the evidence offered (see People v. Gilliam , 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129 ; People v. Arena , 106 A.D.3d at 1446, 964 N.Y.S.2d 383 ; People v. Hepburn , 52 A.D.2d 958, 383 N.Y.S.2d 626 [1976] ).
With respect to child witnesses, CPL 60.20 (2) provides that a "witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath" (see People v. Fuller , 50 N.Y.2d 628, 636, 431 N.Y.S.2d 357, 409 N.E.2d 834 [1980] ["(a)ge alone is no testimonial infirmity]; People v. Mendoza , 49 A.D.3d 559, 853 N.Y.S.2d 364 [2008] [a five year old was properly sworn] ). Here, the District Court failed to make any inquiry of defendant's daughter in order to determine whether she understood the nature of an oath. Moreover, defendant attempted to inform the court why she thought that her daughter's testimony was necessary, but her explanation was interrupted and there was no showing that defendant offered her daughter's testimony in palpably bad faith (see People v. Gilliam , 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129 ; People v. Arena , 106 A.D.3d at 1446, 964 N.Y.S.2d 383 ). Although defendant's daughter was present in the courtroom during the police officer's testimony, if the District Court, following an inquiry, had determined that the daughter understood the nature of an oath pursuant to CPL 60.20 (2), the court is presumed to be able to take into account her exposure to the police officer's testimony when evaluating her testimony (see e.g. People v. Lloyde , 106 A.D.2d 405, 405-406, 482 N.Y.S.2d 326 [1984] ).
In view of the foregoing, we find that the court improperly deprived defendant of her constitutional right to present evidence in her defense (see People v. Phillips , 50 Misc. 3d 134(A), 2016 N.Y. Slip Op. 50038(U), 2016 WL 208228 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2016] ), and, thus, a new trial is required with respect to the remaining charges.
We pass on no other issue.
Accordingly, the judgment convicting defendant of unsafely backing up a vehicle in violation of Vehicle and Traffic Law § 1211 (a) is reversed and the accusatory instrument charging that offense is dismissed. The judgments convicting defendant of driving a motor vehicle with an obstructed view, operating a motor vehicle with improper license plates, operating an unregistered motor vehicle, and operating an uninsured motor vehicle are reversed and the matters are remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency for a new trial on those charges.
MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.