Opinion
No. 2008–1217 KCR.
2011-12-27
The PEOPLE of the State of New York, Respondent, v. Donna McCOY, Appellant.
Present: PESCE, P.J., WESTON and STEINHARDT, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Toko Serita, J.), rendered May 15, 2008. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired and leaving the scene of an accident with property damage. ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
Following a nonjury trial, defendant was convicted of driving while ability impaired (Vehicle and Traffic Law § 1192[1] ) and leaving the scene of an accident with property damage (Vehicle and Traffic Law § 600[1][a] ). At trial, a witness testified that, at about 10:10 P.M., he was driving through an intersection when a white vehicle with Virginia plates “blew [past] the stop sign” and collided into his vehicle. In court, the witness identified defendant as the driver of the white vehicle. After the collision, he walked over to defendant's vehicle and stood by its window for about 10 to 20 seconds before defendant drove away. Defendant was later arrested after a police officer saw a white vehicle with Virginia plates traveling the wrong way on a one-way street. The police officer testified that defendant was a front seat passenger in the vehicle, which another woman was driving, and a child was seated in the back.
Upon the exercise of our factual review power ( seeCPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348–349 [2007] ), we find that the verdict was against the weight of the evidence. We have weighed “the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Zephyrin, 52 AD3d 543, 543 [2008] [internal quotation marks and citation omitted] ) and “determine firstly, that an acquittal ... would not have been unreasonable based upon the evidence presented, and secondly, that the trial court failed to accord the evidence the weight it should have been accorded” ( id.; see People v. Danielson, 9 NY3d at 348). Accordingly, the verdict convicting defendant of driving while ability impaired and leaving the scene of an accident with property damage is reversed and the accusatory instrument is dismissed. WESTON and STEINHARDT, JJ., concur.
PESCE, P.J., dissents in a separate memorandum.
PESCE, P.J., dissents and votes to modify the judgment of conviction, on the law, by reducing the fine imposed upon defendant's conviction of leaving the scene of an accident with property damage to the sum of $250.
The evidence at trial shows that the witness, a 65–year–old accountant who does not wear prescription glasses or contact lenses, observed defendant driving a white vehicle with Virginia plates which collided into his vehicle. After the collision, when he went over to defendant's vehicle and asked her what had happened, he saw another woman in the passenger seat and a child in the back seat. Defendant did not answer him; rather, she just looked at him and at his vehicle, and then left the scene of the accident. The witness testified that it was a clear night with no rain, snow or fog, and that there was ample street lighting. Defendant was arrested about 20 minutes later when the white vehicle with Virginia plates in which defendant was a front seat passenger, was stopped. The arresting officer observed that defendant had slurred speech, red, watery eyes and the odor of alcohol emanated from her breath.
I find that the foregoing evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621 [1983] ), was legally sufficient to establish, beyond a reasonable doubt, defendant's guilt of driving while ability impaired (Vehicle and Traffic Law § 1192[1] ) and leaving the scene of an accident with property damage (Vehicle and Traffic Law § 600[1][a] ). Furthermore, I give great deference to the trier of fact'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 N.Y.2d 490, 495 [1987] ) and, upon a review of the record, I find that the verdict was not against the weight of the evidence ( see People v. Romero, 7 NY3d 633, 643–646 [2006] ).
The Criminal Court, however, erred in imposing a $300 fine upon defendant's conviction of leaving the scene of an accident with property damage. Pursuant to Vehicle and Traffic Law § 600(1)(c), the maximum allowable fine for a conviction on this charge is $250, and the fine should be reduced accordingly.