Opinion
2004-562 N CR.
Decided February 22, 2005.
Appeal by defendant from a judgment of the Justice Court, Village of Lake Success, Nassau County (H. Boris, J.), rendered on December 10, 2003, following a non-jury trial, convicting him of violating Vehicle and Traffic Law § 1128 (a) and imposing a fine.
Judgment of conviction unanimously reversed on the facts, accusatory instrument dismissed and fine, if paid, remitted.
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
The evidence adduced at trial does not support defendant's conviction of violating Vehicle and Traffic Law § 1128 (a). All of the testimony indicated that defendant was moving slowly, attempting to pass an accident scene, and there was no testimony to support an inference that his movement to the left of the issuing officer's patrol car at the scene was not safe. While the credibility determinations of a trier of fact are generally entitled to great deference upon appeal ( see e.g. People v. Garafolo, 44 AD2d 86), it must be noted that defendant presented his own testimony and that of two witnesses, that their substantive recollections differed from those of the issuing officer, and that the court below apparently did not make any credibility assessment of the testimony in convicting defendant.