Opinion
No. 2010–1434 W CR.
2012-06-13
The PEOPLE of the State of New York, Respondent, v. William GUMBS, Appellant.
Present: NICOLAI, P.J., LaCAVA and IANNACCI, JJ.
Appeal from a judgment of the City Court of Peekskill, Westchester County (Thomas R. Langan, J.), rendered May 13, 2010. The judgment convicted defendant, after a nonjury trial, of speeding in a construction zone.
ORDERED that the judgment of conviction is reversed, on the law and as a matter of discretion in the interest of justice, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
Defendant was charged in a simplified traffic information with speeding in a construction zone (Vehicle and Traffic Law § 1180[f] ). Upon appearing without counsel on the trial date, defendant requested an adjournment to retain counsel. The People objected on the grounds that defendant had been advised of the trial date at the pretrial conference eight months earlier and had failed to comply with the City Court's procedure requiring adjournment requests to be made in writing five business days prior to the trial date. The court denied defendant's oral request and proceeded with the nonjury trial. Following trial, defendant was convicted of traveling 20 miles per hour above the posted speed limit in a construction zone. On appeal, defendant argues that his request for an adjournment was improperly denied and challenges the legal sufficiency of the evidence supporting his conviction.
We agree with defendant that the City Court's denial of defendant's request for an adjournment was improper ( see People v. Rellou, 31 Misc.3d 143[A], 2011 N.Y. Slip Op 50874[U] [App Term, 9th & 10th Jud Dists 2011]; People v. Schonfeld, 26 Misc.3d 74 [App Term, 9th & 10th Jud Dists 2009]; People v. Rios, 9 Misc.3d 1 [App Term, 9th & 10th Jud Dists 2005] ). While defendant did not comply with the City Court's formal adjournment request procedure, his noncompliance did not abridge his statutory right to an adjournment to obtain representation ( seeCPL 170.10[3][a] ).
However, rather than remitting the matter for a new trial, we elect to reach defendant's unpreserved argument ( seeCPL 470.05[2] ), that the evidence of his guilt was legally insufficient.
When viewed in the light most favorable to the prosecution (People v. Contes, 60 N.Y.2d 620 [1983] ), the evidence adduced at trial failed to establish defendant's guilt of speeding beyond a reasonable doubt. While a qualified police officer's testimony that he visually estimated the speed of a defendant's vehicle as exceeding the speed limit by more than 20 miles per hour is sufficient to establish a defendant's guilt of speeding beyond a reasonable doubt (People v. Olsen, 22 N.Y.2d 230, 232 [1968];People v. Poltorak, 28 Misc.3d 129[A], 2010 N.Y. Slip Op 51222[U] [App Term, 9th & 10th Jud Dists 2010] ), in this case, the officer failed to establish his qualification to visually estimate the speed of motor vehicles. Consequently, the trial proof was legally insufficient ( see People v. Riedinger, 31 Misc.3d 142[A], 2011 N.Y. Slip Op 50836[U] [App Term, 9th & 10th Jud Dists 2011]; People v. Ferri, 10 Misc.3d 136[A], 2005 N.Y. Slip Op 52135[U] [App Term, 9th & 10th Jud Dists 2005] ).
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.