Opinion
2018-352 S CR
12-24-2020
The PEOPLE of the State of New York, Respondent, v. Jose MORALES, Appellant.
Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office, for respondent (no brief filed).
Scott Lockwood, for appellant.
Suffolk County Traffic Prosecutor's Office, for respondent (no brief filed).
PRESENT: THOMAS A. ADAMS, P.J., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ.
ORDERED that the four judgments convicting defendant of unlicensed operation of a motor vehicle, and operating a motor vehicle with an inoperative parking brake, an inoperative left rear lamp, and an inoperative left turn signal, respectively, are affirmed; and it is further,
ORDERED that the four judgments convicting defendant of operating a motor vehicle with a substandard tire are reversed, on the facts, the accusatory instruments charging that offense are dismissed, and the fines, surcharges, and administrative fees thereon, if paid, are remitted.
Defendant was charged in eight separate simplified traffic informations with unlicensed operation of a motor vehicle ( Vehicle and Traffic Law § 509 [1] ), and operating a motor vehicle with an inoperative parking brake ( Vehicle and Traffic Law § 375 [1] ), an inoperative left rear lamp ( Vehicle and Traffic Law § 375 [2] [a] [3] ), an inoperative left turn signal ( Vehicle and Traffic Law § 375 [18] ), and a substandard tire (four charges) ( Vehicle and Traffic Law § 375 [35] [c] ), respectively. Following a nonjury trial, during which the state trooper who had issued the citations to defendant testified, the court found defendant guilty of all charges and sentenced defendant to a fine in the amount of $100, plus a $55 administrative fee and a surcharge, on each conviction.
Upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one appellate review of adverse factual findings" ( People v. Danielson , 9 NY3d 342, 348 [2007] ). "Necessarily, in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution's witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt" ( id. at 349 ). If it appears that the factfinder failed to give the evidence the weight it should be accorded, this court may set aside the verdict and dismiss the accusatory instrument (see CPL 470.20 [5] ; People v. Romero , 7 NY3d 633, 643—644 [2006] ; People v. Mateo , 2 NY3d 383, 410 [2004] ). Application of these principles here warrants the conclusion that the verdicts convicting defendant of unlicensed operation of a motor vehicle, and operating a motor vehicle with an inoperative parking brake, an inoperative left rear lamp, and an inoperative left turn signal, respectively, were not against the weight of the evidence. However, the four verdicts convicting defendant of operating a motor vehicle with a substandard tire were against the weight of the evidence as the People failed to establish a violation of Vehicle and Traffic Law § 375 (35) (c), in that they failed to prove that defendant's motor vehicle was not in compliance with any of the standards for tires set forth in 15 NYCRR 51.5.
Defendant's constitutional challenge to Article 14-B of the General Municipal Law was not raised with specificity in his affidavit of errors and, consequently, since the District Court was not able to respond to this contention in its return, we find that the claim is unpreserved for appellate review and we decline to address it as a matter of discretion in the interest of justice (see People v. Sarant , 60 Misc 3d 140[A], 2018 NY Slip Op. 51270[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v. Massian , 60 Misc 3d 134[A], 2018 NY Slip Op. 51049[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v. Pomerantz , 59 Misc 3d 133[A], 2018 NY Slip Op. 50482[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ).
We have reviewed defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit (see People v. Austin , 67 Misc 3d 143[A], 2020 NY Slip Op. 50743[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Massian , 60 Misc 3d 134[A], 2018 NY Slip Op. 51049[U] ; People v. Gray , 58 Misc 3d 155[A], 2018 NY Slip Op. 50184[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v. Cataldo , 57 Misc 3d 153[A], 2017 NY Slip Op. 51597[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ).
Accordingly, the four judgments convicting defendant of unlicensed operation of a motor vehicle, and operating a motor vehicle with an inoperative parking brake, an inoperative left rear lamp, and an inoperative left turn signal, respectively, are affirmed. The four judgments convicting defendant of operating a motor vehicle with a substandard tire are reversed and the accusatory instruments charging that offense are dismissed.
ADAMS, P.J., RUDERMAN and EMERSON, JJ., concur.