Opinion
2007-864 N CR.
Decided October 30, 2008.
Appeal from judgments of the City Court of Glen Cove, Nassau County (Richard J. McCord, J.), rendered March 27, 2007. The judgments convicted defendant, after a nonjury trial, of passing a stopped school bus and "failure to produce a license."
Judgment convicting defendant of passing a stopped school bus affirmed.
Judgment convicting defendant of "failure to produce a license" reversed on the law, simplified information dismissed and fine, if paid, remitted.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
Defendant failed to preserve for appeal any legal sufficiency claim ( see People v Gray, 86 NY2d 10, 20). In any event, viewing the evidence in the light most favorable to the People ( see People v Contes, 60 NY2d 620, 621), we conclude that it was legally sufficient to establish all of the elements of passing a stopped school bus beyond a reasonable doubt ( see Vehicle and Traffic Law § 1174 [a]). The complainant officer testified to having observed defendant's vehicle before it reached the school bus and defendant's passing the bus while its lights and stop signs were activated, and while children were being discharged. Defendant offered a contrary version of the incident. An appellate court must reject a legal sufficiency claim where, as here, " any rational trier of fact could have found the essential elements of the [acts alleged] beyond a reasonable doubt" ( People v Conway, 6 NY3d 869, 872 [internal quotation marks and citations omitted]; see also CPL 70.10).
Furthermore, upon the exercise of our factual review power, we conclude that the verdict of guilt of passing a stopped school bus was not against the weight of the evidence ( see CPL 470.15; People v Danielson, 9 NY3d 342, 349; People v Romero, 7 NY3d 633, 644 ; People v Bleakley, 69 NY2d 490, 495). The record does not support defendant's contention herein that the officer was perjuring himself. It is well settled, moreover, that the credibility of witnesses poses questions of fact, and the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, is primarily for the trier of fact, who had the opportunity to "view the witnesses, hear the testimony and observe demeanor" ( People v Romero, 7 NY3d at 644, quoting People v Bleakley, 69 NY2d 490, 495, supra). The determination of the trier of fact will be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record ( see People v Garafolo, 44 AD2d 86, 88). The record before us amply supports the trial court's determination and, thus, the judgment convicting defendant of passing a stopped school bus is affirmed.
The judgment convicting defendant of "failure to produce a license," however, is reversed. Although the operation of a motor vehicle without a license constitutes an offense (Vehicle and Traffic Law § 509), the failure to produce one upon demand of a police officer merely creates a rebuttable presumption that the driver is not duly licensed (Vehicle and Traffic Law § 507; People v Watson, 177 AD2d 676, 676; Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Book 62A, Vehicle and Traffic Law § 507, at 258-259). In the case at bar, the officer's own testimony established that defendant had a valid driver's license. Since the charge of "failure to produce a license" itself does not constitute an offense and, in fact, the proof at trial showed that defendant did have a license, we reverse said judgment of conviction and dismiss the underlying simplified traffic information.
McCabe, J.P., Tanenbaum and Molia, JJ., concur.