Opinion
2017-382 S CR
11-29-2018
The PEOPLE of the State of New York, Respondent, v. Peter J. GOLDMANN, Appellant.
Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Scott Lockwood, for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (John Andrew Kay, J.H.O.), rendered January 19, 2017. The judgment convicted defendant, after a nonjury trial, of speeding. The appeal brings up for review an order of that court dated January 12, 2017 (Kenneth S. Diamond, J.H.O.) denying defendant's motion for a subpoena duces tecum.
ORDERED that the judgment of conviction is affirmed.
In a simplified traffic information, defendant was charged with speeding ( Vehicle and Traffic Law 1180 [b] ), in that, on, March 24, 2016, defendant had operated his motor vehicle at a speed of 110 miles per hour (mph) in a 55 mph speed zone. The officer's supporting deposition states that the charge of speeding was based upon his direct independent observation and estimate of defendant's speeding vehicle which were corroborated by pacing defendant's vehicle in a marked police vehicle. Defendant moved, pursuant to CPLR 2307 and CPL 610.20 (3), for the issuance of a subpoena duces tecum compelling the People to produce, among other things, calibration and maintenance records of the speedometer device used to measure the rate of speed of defendant's vehicle, police training materials regarding speed measurement, written directives governing the maintenance of speed measuring devices, and "all documentation showing an observation of personnel operating these devices to verify that officers are [in] compliance with the directives governing such devices." The court (Kenneth S. Diamond, J.H.O.) denied the motion.
Following a nonjury trial, at which no stenographic minutes were taken, defendant was found guilty of speeding and sentenced to pay a fine of $500. A surcharge of $88 and an administrative fee of $55 were also imposed. Thereafter, in an affidavit of errors (see CPL 460.10 [3] ), defendant alleged that, among other things, the court had erred in allowing the officer to give opinion testimony regarding the rate of speed at which his vehicle was traveling and in allowing evidence of the speedometer used to pace defendant's vehicle since there was no documentation establishing that the speedometer had been properly calibrated. Additionally, defendant alleged that the court could not impose the administrative fee in the sum of $55, since the right to impose an administrative fee is preempted by state law.
Here, the court's return (see CPL 460.10 [3] [d] ), by which this court is bound (see People v. Prior , 4 NY2d 70, 73 [1958] ), is "conclusive as to all controverted matters within the [court's] knowledge, not only on the [appellate court] but on the defendant and the People as well" (id. [internal quotation marks omitted] ). The testimony by a police officer qualified to visually estimate the speed of moving vehicles is, standing alone, sufficient to support a speeding conviction where, as here, the variance between the officer's visual observation of the speed of the defendant's vehicle and the posted speed limit was 55 mph, which variance is "sufficiently wide, so that [the factfinder] may be certain beyond a reasonable doubt that ... defendant exceeded the permissible limit" ( People v. Olsen , 22 NY2d 230, 232 [1968] ; see People v. Krasniqi , 58 Misc 3d 158[A], 2018 NY Slip Op 50245[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ). Moreover, while the officer's testimony was insufficient to show the reliability of the speedometer used to pace defendant's vehicle, the reading of an untested device, when taken in conjunction with a qualified officer's visual estimate, is legally sufficient to establish the speed of a moving vehicle (see People v. Dusing , 5 NY2d 126, 128 [1959] ). Furthermore, upon the exercise of this court's factual review power (see CPL 470.15 [5] ; People v. Danielson , 9 NY3d 342, 348-349 [2007] ), 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 NY3d 888, 890 [2006] ; People v. Bleakley , 69 NY2d 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 NY3d 633, 643-646 [2006] ). We do not decide if the District Court erred in denying defendant's motion for a subpoena duces tecum, since, in light of the foregoing, error, if any, was harmless.
We have reviewed defendant's remaining contentions and find them to be either without merit or unpreserved for appellate review.
Accordingly, the judgment of conviction is affirmed.
GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.