Opinion
2016-405 N CR
07-12-2018
The PEOPLE of the State of New York, Respondent, v. Dennis HAKIM, Appellant.
Dennis Hakim, appellant pro se. Nassau County Attorney's Office (Robert F. Van der Waag), for respondent.
Dennis Hakim, appellant pro se.
Nassau County Attorney's Office (Robert F. Van der Waag), for respondent.
PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
ORDERED that the judgment of conviction is affirmed.
On March 9, 2015, the People charged defendant in a simplified traffic information with using a portable electronic device while operating a motor vehicle (Vehicle and Traffic § 1225-d [1] ). Following a nonjury trial, defendant was found guilty of the offense.
Defendant argues on appeal that the supporting deposition filed in this prosecution did not state the color of the cell phone he was alleged to have employed to commit the offense, thereby failing to apprise him of a fact necessary to a defense. A supporting deposition in this context must
"contain[ ] allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged" ( CPL 100.25 [2 ] ).
Since a simplified traffic information "can proceed to trial without any supporting deposition at all, and hence without any facts providing reasonable cause" ( People v. Key , 45 NY2d 111, 116-117 [1978] ), a complaint that a supporting deposition was legally insufficient to establish reasonable cause is nonjurisdictional (see People v. Beattie , 80 NY2d 840, 842 [1992] ), and must be preserved by a pretrial motion to dismiss, in writing and on reasonable notice to the People ( People v. Key , 45 NY2d at 116 ; see CPL 170.45, 210.45 [1 ]; People v. Sperandeo , 52 Misc 3d 135[A], 2016 NY Slip Op 51032[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v. Appel , 44 Misc 3d 133[A], 2014 NY Slip Op. 51152[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014] ). Defendant never so moved and, thus, his challenge to the supporting deposition's factual sufficiency is not preserved for appellate review. In any event, while notice of the color of the phone to be alleged at the trial might have facilitated a defense based on that fact, the color of the "portable device" is not an element of the offense and it is not essential to establishing reasonable cause.
The trial court properly sustained the prosecutor's objection to defendant's attempt to offer uncertified copies of Sprint telephone use records. Such documents are business records subject to the evidentiary rules governing their admissibility (see CPLR 4518 ; see generally People v. Kennedy , 68 NY2d 569 [1986] ; e.g. People v. Bonhomme , 85 AD3d 939, 940 [2011] ; People v. Manor , 38 AD3d 1257, 1257 [2007] ), and defendant neither produced the documents in admissible form nor did he produce evidence to satisfy the business records exception to the hearsay rule. While courts may afford a pro se litigant some latitude, he or she " ‘acquires no greater right’ than any other litigant and will be held to the same standards of proof as those who are represented by counsel" ( Duffen v. State of New York , 245 AD2d 653, 653-654 [1997], quoting Roundtree v. Singh , 143 AD2d 995, 996 [1998] ). In any event, defendant's offer of proof did not establish that the evidence was of probative worth as the mere absence of indications of the cell phone's actual use would not necessarily support a defense to the charge, since the statute may be violated by conduct that would not be recorded as a use.
Any claim that the evidence was legally insufficient to prove the offense beyond a reasonable doubt is not preserved for appellate review (see CPL 470.05 [2 ]; People v. Hawkings , 11 NY3d 484, 491 [2008] ; People v. Hines , 97 NY2d 56, 62 [2001] ). In any event, we find that the evidence was legally sufficient. Further, upon the exercise of our authority to review the weight of the evidence (see CPL 470.15 [5 ]; People v. Danielson , 9 NY3d 342 [2007] ), we find no basis to disturb the verdict of guilt. Vehicle and Traffic Law § 1225-d (1), (2) (a), (b) and (4) provide in pertinent part:
"1. Except as otherwise provided in this section, no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion ....
2. ...(a) ‘Portable electronic device’ shall mean any hand-held mobile telephone, as defined by subdivision one of section [1225-c] of this article, personal digital assistant (PDA), hand-held device with mobile data access ... or any other electronic device when used to input, write, send, receive, or read text for present or future communication.
(b) ‘Using’ shall mean holding a portable electronic device while viewing, taking or transmitting images, playing games, or, for the purpose of present or future communication: performing a command or request to access a world wide web page, composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, instant messages, or other electronic data.
...
4. A person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle ... is presumed to be using such device ....The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not using the device within the meaning of this section" (see e.g. People v. Ingber , 58 Misc 3d 49, 51-52 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ).
The police officer who issued the simplified traffic information testified that he had observed defendant operating his automobile while holding a white cell phone "in his right hand to the front of his face" and "viewing the screen with his right thumb moving on the device." Defendant displayed what appeared to be the same phone following the stop. This conduct sufficed to invoke the presumption of use, and to establish, beyond a reasonable doubt, a violation of the statute (see e.g. People Agbimson , 51 Misc 3d 150[A], 2016 NY Slip Op. 50842[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ). Defendant's denial that he had used any phone at the time of the incident presented a credibility issue which, upon this record, the court could properly resolve in the People's favor (see People v. Mateo , 2 NY3d 383, 410 [2004] ; People v. Bleakley , 69 NY2d 490, 495 [1987] ; People v. Torres , 54 Misc 3d 139[A], 2017 NY Slip Op 50150[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ).
Accordingly, the judgment of conviction is affirmed.
GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.