Opinion
2016–1439 W CR
04-05-2018
The PEOPLE of the State of New York, Respondent, v. Saleh SALEH, Appellant.
Tilem & Associates, P.C. (Robert M. Schechter of counsel), for appellant. Westchester County District Attorney, for respondent (no brief filed).
Tilem & Associates, P.C. (Robert M. Schechter of counsel), for appellant.
Westchester County District Attorney, for respondent (no brief filed).
PRESENT: JERRY GARGUILO, J.P., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ.
ORDERED that, on the court's own motion, the notice of appeal from a decision of that court dated April 27, 2016 is deemed a valid notice of appeal from the judgment of conviction (see CPL 460.10 [6 ] ); and it is further,
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a simplified traffic information with speeding ( Vehicle and Traffic Law § 1180 [b] ). Following a nonjury trial, defendant was convicted of the charge upon a finding that he had operated his vehicle at 72 miles per hour in a 55–mile–per-hour zone.
On appeal, defendant contends that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt; that the verdict was against the weight of the evidence; and that he was denied a fair trial due to allegedly inappropriate conduct by the Justice Court.
Defendant's contention regarding the legal sufficiency of the evidence is unpreserved for appellate review since he failed to raise the issue at trial (see CPL 470.05 [2 ]; People v. Hawkins , 11 NY3d 484, 491–492 [2008] ; People v. Hines , 97 NY2d 56, 61 [2001] ; People v. Gray , 86 NY2d 10 [1995] ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes , 60 NY2d 620, 621 [1983] ), and indulging in all reasonable inferences in the People's favor (see People v. Ford , 66 NY2d 428, 437 [1985] ), we find that it was legally sufficient to establish defendant's guilt of speeding ( Vehicle and Traffic Law § 1180 [b] ), beyond a reasonable doubt. A New York State trooper testified that he had been trained to estimate the speed of a moving vehicle to within three miles per hour of its actual speed, that he had estimated the speed of defendant's vehicle at 75 miles per hour in a 55 mile-per-hour-zone, and that his radar device had measured the speed of defendant's vehicle at 76 miles per hour. Although the trooper's testimony was insufficient to show the reliability of the radar device, the reading of an untested radar device, when taken in conjunction with a qualified officer's visual estimate, is legally sufficient to establish the speed of a moving vehicle (see People v. Dusing , 5 NY2d 126, 128 [1959] ). Moreover, the testimony by a trooper qualified to visually estimate the speed of moving vehicles is, standing alone, sufficient to support a speeding conviction where, as here, the variance between the officer's visual estimate of the speed of the defendant's vehicle and the posted speed limit was 20 miles per hour, which variance is "sufficiently wide, so that [the factfinder] may be certain beyond a reasonable doubt that the defendant exceeded the permissible limit" ( People v. Olsen , 22 NY2d 230, 232 [1968] ; see People v. DiBello , 46 Misc 3d 143[A], 2015 NY Slip Op 50192[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; People v. Raghubir , 39 Misc 3d 138[A], 2012 NY Slip Op 52476[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012] ). Furthermore, upon the exercise of this court's factual review power (see CPL 470.15 [5 ]; People v. Danielson , 9 NY3d 342, 348–349 [2007] ), while according 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 NY2d 490, 495 [1987] ), we find that the verdict convicting defendant of speeding was not against the weight of the evidence (see People v. Romero , 7 NY3d 633, 643–646 [2006] ).
Defendant's remaining contention—that inappropriate conduct by the Justice Court deprived him of a fair trial—is unpreserved for appellate review since he failed to raise any objection thereto at trial (see CPL 470.05 [2 ] ). In any event, defendant's contention lacks merit. A trial judge has a vital role in clarifying testimony and ensuring an orderly trial (see People v. Yut Wai Tom , 53 NY2d 44, 55–57 [1981] ; People v. Prado , 1 AD3d 533, 535 [2003] ), and has the discretion to become involved in witness examination (see People v. Prado , 1 AD3d at 535 ). While a court abuses its discretion if it excessively and unnecessarily interferes with counsel, or expresses a personal opinion (see People v. Ashby , 72 AD2d 506, 507 [1979] ; People v. Barone , 6 Misc 3d 135[A], 2005 NY Slip Op 50235[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005] ), this did not occur in the case at bar.
Accordingly, the judgment of conviction is affirmed.
GARGUILO, J.P., and RUDERMAN, J., concur.
TOLBERT, J., taking no part.