Opinion
No. 2011–1266 OR CR.
2012-12-24
The PEOPLE of the State of New York, Respondent, v. Israel GROSS, Appellant.
Defendant did not preserve for appellate review his contention that the People failed to present legally sufficient evidence. Nevertheless, reviewing that contention in the exercise of our interest of justice jurisdiction ( seeCPL 470.15[3][c] ), and viewing the evidence in the light most favorable to the prosecution, we find that the evidence was legally insufficient to support defendant's conviction ( see People v. Farrell, 61 AD3d 696 [2009] ). Legally sufficient evidence is defined as “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof” (CPL 70.10[1]; see People v. Mills, 1 NY3d 269, 274 [2003];People v. Bello, 92 N.Y.2d 523, 525–526 [1998];People v. Swamp, 84 N.Y.2d 725, 730 [1995];People v. Warren, 98 AD3d 634 [2012] ). Under Vehicle and Traffic Law § 1125(a)(1), the prosecution must establish, in addition to other elements, that “the driver's view [was] obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction.” Here, the prosecution failed to establish this element of the offense, as the police officer who had issued the ticket testified only that defendant had driven his vehicle to the left side of roadway while negotiating a curve, without stating that defendant's view had been obstructed. Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.