Opinion
No. 2010–945WCR.
2011-12-7
The PEOPLE of the State of New York, Respondent, v. Steven M. SCHWARTZ, Appellant.
Present: TANENBAUM, J.P., LaCAVA and IANNACCI, JJ.
Appeal from a judgment of conviction of the City Court of Rye, Westchester County (Joseph L. Latwin, J.), rendered March 11, 2010. The judgment convicted defendant, after a nonjury trial, of violating Vehicle and Traffic Law § 375(2)(a).
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with violating Vehicle and Traffic Law § 375(2)(a) in that, on April 23, 2009, at approximately 9:01 P.M., he was driving a vehicle without two lighted front head lamps. Following a nonjury trial, the City Court convicted defendant of the charged offense.
Defendant's contention that the verdict was legally insufficient, because the officer's testimony was incredible as a matter of law, was not preserved by an appropriate objection at trial ( seeCPL 470.05[2]; People v. Gruttola, 43 N.Y.2d 116, 122 [1977];People v. Carlucci, 80 AD3d 621 [2011] ). In any event, we find that the officer's testimony was not incredible as a matter of law ( see People v. Gouvatsos, 45 AD3d 779 [2007];People v. Pagan, 291 A.D.2d 509, 510 [2002] ), and, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620 [1983] ), we find that the People proved defendant's guilt of driving a motor vehicle in violation of Vehicle and Traffic Law § 375(2)(a) beyond a reasonable doubt. Vehicle and Traffic Law § 375(2)(a) provides that “every motor vehicle ... driven upon a public highway during the period from one-half hour after sunset until one half-hour before sunrise ... shall display: at least two lighted head lamps on the front ...” Although no evidence of the time of sunset was adduced at trial, this court may take judicial notice that on April 23, 2009, the time of sunset at the location of the alleged offense was approximately 7:43 P.M. eastern daylight savings time ( see People v. Smith, 62 A.D.2d 1043 [1978] [“An appellate court may take judicial notice for the first time on appeal of a fact (the time of sunset) which was not brought to the attention of the trial court.”], citing Hunter v. New York, Ontario & W. R.R. Co., 116 N.Y. 615 [1889];People v. McCray, 61 A.D.2d 860 [1978];see also Ptasznik v. Schultz, 247 A.D.2d 197, 198–199 [1998] ). In view of the undisputed testimony that the alleged offense occurred at 9:01 P.M., it is clear that it occurred “during the period from one-half hour after sunset until one-half hour before sunrise.”
Accordingly, the judgment of conviction is affirmed. LaCAVA and IANNACCI, JJ., concur.
TANENBAUM, J.P., dissents in a separate memorandum.
TANENBAUM, J.P., dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum:
The complainant officer at dark was parked observing traffic and noticed that defendant's oncoming car failed to have illuminated headlights. After stopping defendant, the officer had a conversation with defendant, who was in a rental car with Texas license plates, about the lack of headlights. Defendant then turned on a switch, causing the windshield wipers to work, and another switch causing the headlamps to illuminate. The record and briefs allude to the officer arresting defendant for driving while intoxicated in addition to issuing a summons for a headlight violation. The officer then confiscated defendant's New York State driver's license while taking him into custody, and also impounded his vehicle. The District Attorney later declined to prosecute the driving while intoxicated charge. The summons issued for the alleged headlight violation was then referred for prosecution to the local criminal court.
Vehicle and Traffic Law § 375(2)(a) provides:
“Every motor vehicle except a motorcycle, driven upon a public highway during the period from one-half hour after sunset to one-half hour before sunrise ... shall display: (1) at least two lighted head lamps on the front, one on each side, having light sources of equal power ...”
The judgment should be reversed because the predicate summons should have been dismissed based upon Vehicle and Traffic Law § 376–a (3), which provides: “If the vehicle is being driven or operated in violation of any provisions of section three hundred seventy-five ... such officer shall issue a summons, provided, however, that a summons shall not be issued if, in the discretion and at the request of such officer, the defect is corrected in the presence of such officer ...”
Vehicle and Traffic Law § 376–a (4) provides:
“Any complaint issued for any violation of section three hundred seventy-five ... shall be dismissed by the court before which the summons is returnable if the violation as set forth in the summons is corrected not later than one-half hour after sunset on the first full business day after the issuance of the summons and proof of such correction as set forth in subdivision five of this section is submitted to the court ...”
Therefore, pursuant to Vehicle and Traffic Law § 376–a (3), the summons should not have been issued because at the request of the officer the defect was corrected. If there is a finding that the summons should have been issued, defendant having been arrested, such retention in custody was rendered unwarranted because of the District Attorney's decision not to prosecute. Thus, the rental vehicle having been impounded at an unknown location while defendant was retained in custody, he was deprived of the ability to have the vehicle repaired and to have the proceeding dismissed pursuant to Vehicle and Traffic Law section 376–a (4).