Opinion
2016–659 S CR
02-08-2018
The PEOPLE of the State of New York, Respondent, v. Courtnie S. GRAY, Appellant.
Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff), for respondent.
Scott Lockwood, for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff), for respondent.
PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, TERRY JANE RUDERMAN, JJ
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 August 7, 2015 at 11:30 a.m., defendant had operated his motor vehicle at a speed of 84 miles per hour in a 55 miles per hour speed zone. It was alleged in the trooper's supporting deposition that he had visually estimated defendant's rate of speed at 82 miles per hour. Defendant moved, pursuant to CPLR 2307 and CPL 610.20 (3), for the issuance of a subpoena duces tecum compelling the People to produce calibration and maintenance records of the laser 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 (Paul H. Senzer, J.H.O.) denied the motion.
Following a nonjury trial, at which no stenographic minutes were taken, the court (Alan M. Wolinsky, J.H.O.) found defendant guilty of speeding at 82 miles per hour, based upon the trooper's visual estimate of the speed of defendant's vehicle, and sentenced defendant to a $450 fine. A surcharge of $88 and an administrative fee of $55 were also imposed. Thereafter, in an affidavit of errors ( CPL 460.10 [3 ] ), defendant alleged, among other things, that the court had erred in allowing the trooper to give opinion testimony regarding the rate of speed at which defendant's vehicle was traveling and in allowing evidence of the laser measuring device since judicial notice had not been taken of its accuracy and there was no documentation establishing that the device was properly calibrated. Additionally, defendant alleged that the court could not impose the administrative fee in the sum of $55 since it is preempted by state law.
A subpoena enables a defendant to obtain evidence relevant to the issues that are material to the trial itself (see CPL 610.20 [3 ] ). However, the procedural mechanism of a subpoena duces tecum cannot be used to expand discovery available under existing law (see Matter of Terry D. , 81 NY2d 1042, 1045 [1993] ), or
"to circumvent the discovery provisions of CPL 240.20 [ ] to ascertain the existence of evidence or to fish for impeaching material. Rather, its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding. A showing that certain documents carry a potential for establishing relevant evidence is insufficient; instead, a defendant must put forth some factual predicate which would make it reasonably likely that documentary information will bear relevant and exculpatory evidence" (Matter of Constantine v. Leto , 157 AD2d 376, 378 [1990], affd for reasons stated below 77 NY2d 975 [1991] [internal quotation marks and citations omitted] ).
While under appropriate circumstances a defendant may be entitled to receive records documenting the maintenance and calibration testing of a speed measuring device pursuant to a subpoena duces tecum (see Matter of Constantine v. Leto , 157 AD2d at 378 [1990] ; People v. Russo, 149 AD2d 255, 257 [1989] ), here, error, if any, was harmless since the trooper's training in estimating the speed of motor vehicles was established, and visual estimation alone is sufficient to support a conviction, especially when the disparity between the posted limit and the estimated speed of travel is as wide as in the present case (see People v. Olsen , 22 NY2d 230 [1968] ). Moreover, "a reading from an untested [laser] device" is admissible and, "coupled with a qualified officer's visual estimate, suffices to prove the offense" ( People v. Palu , 47 Misc 3d 35, 37 [App Term, 2d Dept, 9th & 10th Jud Dists 2015] ). Additionally, the subpoena was overbroad with respect to the remaining information requested therein and constituted a fishing expedition and an attempt to bypass the limits of discovery imposed upon a defendant charged with speeding in a simplified traffic information (see CPL 240.20 [1 ] [k]; Matter of Constantine v. Solomon , 194 AD2d 538 [1993] ; Matter of Constantine v. Leto , 157 AD2d at 378 ).
Contrary to defendant's remaining contention, the administrative fee in the sum of $55 imposed by the court is authorized and is not preempted by state law. General Municipal Law § 370 (3) provides:
"There shall be a department of the Suffolk county government known as the Suffolk county traffic and parking violations agency, which shall operate under the direction and control of the county executive."
The administrative fee is authorized pursuant to Code of Suffolk County §§ 818–77 (A) and 818–78 (2). The administrative fee is not addressed in the Vehicle and Traffic Law, and it does not conflict with an express or an implied provision thereof. Moreover, it is not a penalty imposed as part of a sentence (see People v. Flores , 30 Misc 3d 135[A], 2011 NY Slip Op 50152[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] [ Vehicle and Traffic Law § 1809 (1) makes it clear that any crime victim assistance fee and mandatory surcharge are levied in addition to, not as part of, the sentence] ). Consequently, the $55 administrative fee is not preempted by state law (see generally Guthart v. Nassau County, 55 Misc 3d 827 [Sup Ct, Nassau County 2017] ).
Accordingly, the judgment convicting defendant of speeding is affirmed.
GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.