Opinion
2014-402 N CR
02-22-2016
The People of the State of New York, Respondent, v. Gerald Gbadebo, Appellant.
PRESENT: :
Appeal from three judgments of the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency (John P. O'Shea, Jr., J.H.O.), rendered February 11, 2014. The judgments, after a nonjury trial, convicted defendant of failing to obey a traffic control device and of two charges of following too closely, respectively.
ORDERED that the judgment convicting defendant of following too closely under simplified traffic information no. D37601DZG8 is affirmed; and it is further,
ORDERED that the judgments convicting defendant of failing to obey a traffic control device and following too closely under simplified traffic information no. D37601F0G8 are reversed, on the law, the accusatory instruments charging these offenses are dismissed, and the fines therefor, if paid, are remitted.
On November 30, 2012, the People charged defendant, in separate simplified traffic informations, with failing to obey a traffic control device by traveling in excess of the posted speed limit (Vehicle and Traffic Law § 1110 [a]), and twice with following too closely (Vehicle and Traffic Law § 1129 [a]). At a nonjury trial, a police officer testified, among other things, that he was qualified visually to estimate vehicular speeds to within five miles per hour of their actual speeds, that he had observed defendant traveling in the leftmost lane of the Long Island Expressway at speeds of up to 75 miles an hour, and that, with respect to the first charge of following too closely, defendant's vehicle at times was traveling at 60 miles per hour while positioned only a car length behind a vehicle in front of him. The officer did not testify as to the facts of the second charge of following too closely, other than to state, conclusorily, that defendant had followed a second vehicle too closely after the first vehicle had left defendant's lane to avoid defendant. Following the trial, defendant was convicted of the three charges. On appeal, defendant argues, in effect, that the trial proof was insufficient to establish his guilt of the charges and that his innocence is underscored by the officer's testimony that he stopped defendant's vehicle, in part, because the vehicle was unsafe to operate owing to extensive rear-end damage.
Defendant's argument—that the issuing officer's statements to him at the scene regarding the condition of his vehicle and the wisdom of operating it implicate the validity of the stop and of the offenses ultimately charged, and the truth of the officer's testimony with respect to their commission—is without merit. An " officer who can articulate credible facts establishing reasonable cause to believe that someone has violated a law has established a reasonable basis to effectuate a [traffic] stop' " ( People v Guthrie, 25 NY3d 130, 133 [2015], quoting People v Robinson, 97 NY2d 341, 353-354 [2001]), "without regard to the primary motivation of the police officer or an assessment that a reasonable traffic officer would have made the same stop" ( Robinson, 97 NY2d at 350).
We also find no merit to defendant's claim that the evidence was insufficient to establish his guilt of following too closely under simplified traffic information no. D37601DZG8. Vehicle and Traffic Law § 1129 (a) provides:
"(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."
Although the terms "reasonable," "prudent," and "having due regard" are not defined in the statute, as a matter of common sense and practice, traveling at least 55 miles per hour in the leftmost lane of the Long Island Expressway, one car length behind another vehicle, cannot be considered reasonable or prudent.
However, we agree that there was insufficient proof of the other charge of following too closely (simplified traffic information no. D37601F0G8). The officer testified, in essence, only that, after the first such incident, defendant had engaged in similar conduct with regard to a second vehicle. The trial evidence must establish each element of every offense charged, which cannot be satisfied by testimony, in effect, that the defendant had repeated the offense. Thus, the judgment convicting defendant of a second violation of following too closely must be reversed and the accusatory instrument charging this offense dismissed.
We also find the proof insufficient to establish defendant's guilt of failing to obey a traffic control device. Vehicle and Traffic Law § 1110 (a) requires that "[e]very person shall obey the instructions of any official traffic-control device," which includes a speed limit sign (see Vehicle and Traffic Law § 153). The only testimony with reference to a traffic control device was the officer's affirmative answer to the prosecutor's question as to whether defendant "pass[ed] one or more of the posted speed limit signs" of 55 miles per hour.
"Normally, it is necessary for the People, as part of their direct case, . . . to prove that the Vehicle and Traffic Law was substantially complied with by the placement of speed signs in such a manner and at such locations as to afford [a] defendant fair notice of the limits of speed' " (People v Kennedy, 49 Misc 3d 138[A], 2015 NY Slip Op 51564[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2015], quoting People v Lathrop, 3 NY2d 551, 553 [1958]; see also People v Tortora, 21 Misc 3d 146[A], 2008 NY Slip Op 52564[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2008] ["the proof was not legally sufficient to establish all of the elements of . . . speeding . . . (because t)he locations of the signs, and the manner of their placement, were not adequately described in the testimony"]). In a speeding case, proof that a defendant traveled at a speed exceeding the statewide maximum speed limit of 55 miles per hour unless otherwise posted (see Vehicle and Traffic Law § 1180 [b]) obviates the need to establish the particular placement and appearance of speed signs (Kennedy, 49 Misc 3d 138[A], 2015 NY Slip Op 51564[U], *2; People v Palu, 47 Misc 3d 35, 37 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). However, in a case of failing to obey a traffic control device, such as the one before us, even if the traffic control device is a sign setting forth a maximum speed of 55 miles per hour, the People must establish that defendant had notice of the sign, generally, by testimony as to the location, description, and observability of the sign alleged to have been disobeyed (see People v Cooper, 112 Misc 2d 277, 280 [Town of Rhinebeck Justice Court 1981]; Joseph R. Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Book 62A, Vehicle and Traffic Law § 1110) and that the sign substantially complied with the statutory requirements (see People v Guthrie, 25 NY3d at 140; People v Lathrop, 3 NY2d at 553). Merely categorizing the device disobeyed is insufficient. Consequently, the judgment convicting defendant of this offense must be reversed and the accusatory instrument charging this offense dismissed.
Accordingly, the judgment convicting defendant of following too closely under simplified traffic information no. D37601DZG8 is affirmed, and the judgments convicting defendant of failing to obey a traffic control device and of following too closely under simplified traffic information no. D37601F0G8 are reversed and the accusatory instruments charging these offenses are dismissed.
Iannacci, J.P., Tolbert and Connolly, JJ., concur. Decision Date: February 22, 2016