People v. Karathanos (John)

People v Karathanos (2022 NY Slip Op 51105(U)) [*1] People v Karathanos (John) 2022 NY Slip Op 51105(U) [77 Misc 3d 126(A)] Decided on October 20, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on October 20, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ 2021-676 S CR The People of the State of New York, Respondent, against John G. Karathanos, Appellant. Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent. Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Lewis Silverman, J.H.O.), rendered October 15, 2021. The judgment convicted defendant, after a nonjury trial, of speeding, and imposed sentence. The appeal from the judgment of conviction brings up for review an order of that court (Allen S. Mathers, J.H.O.) dated October 11, 2021 denying defendant's motion to transfer the matter to the District Court and dismiss the simplified traffic information on statutory speedy trial grounds. ORDERED that the judgment of conviction is affirmed. On April 29, 2020, defendant was charged in a simplified traffic information with speeding (Vehicle and Traffic Law § 1180 [b]) on the Long Island Expressway. Defendant moved to transfer the matter to the District Court of Suffolk County and, upon such transfer, to dismiss the simplified traffic information based on statutory speedy trial grounds and a violation of Vehicle and Traffic Law § 1806-a. The People opposed the motion and, in an order dated October 11, 2021, the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (SCTPVA) (Allen S. Mathers, J.H.O.) denied it. Following a nonjury trial, at which both the police officer who issued the traffic summons and defendant testified, the SCTPVA (Lewis Silverman, J.H.O.) found defendant guilty and imposed sentence. CPL 350.20 (5) provides that "for all proceedings before the district court of Suffolk [*2]county, the administrative judge of Suffolk county may, without the consent of the parties, assign matters involving traffic and parking infractions [with certain] except[ions] . . . to a judicial hearing officer in accordance with the provisions of [Vehicle and Traffic Law § 1690]." Vehicle and Traffic Law § 1690 (1) (a) authorizes a judicial hearing officer at the SCTPVA to "entertain the case in the same manner as a court" and to, among other things, "determine all questions of law" (see People v Epakchi, 37 NY3d 39, 42, n 2 [2022] ["A JHO (at the SCTPVA) may adjudicate low-level traffic violations"]; People v Iverson, 37 NY3d 98, 102 [2021]; Matter of Dolce v Nassau County Traffic and Parking Violations Agency, 7 NY3d 492 [2006]; People v Cataldo, 57 Misc 3d 153[A], 2017 NY Slip Op 51597[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). "In the discharge of this responsibility, the judicial hearing officer shall have the same powers as a judge of the court in which the proceeding is pending" (Vehicle and Traffic Law § 1690 [2]), and "[a]ny action taken by a judicial hearing officer in the conduct of a trial or other disposition thereof shall be deemed the action of the court in which the proceeding is pending" (Vehicle and Traffic Law § 1690 [3]). Consequently, as this court has previously determined, a judicial hearing officer at the SCTPVA has the authority to hear and decide a pretrial motion, which is part of adjudicating a traffic offense (see People v Ruiz, 64 Misc 3d 127[A], 2019 NY Slip Op 50984[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). With regard to the merits of defendant's pretrial motion, the 30-day time period of CPL 30.30 (1) (d) is not applicable here as the only charge in the accusatory instrument was a traffic infraction (see People v Smith, 73 Misc 3d 136[A], 2021 NY Slip Op 51071[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Navon, 73 Misc 3d 136[A], 2021 NY Slip Op 51070[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Lopez, 73 Misc 3d 133[A], 2021 NY Slip Op 51016[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Altman, 73 Misc 3d 127[A], 2021 NY Slip Op 50886[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). Additionally, despite defendant's contention to the contrary, Vehicle and Traffic Law § 1806-a (1) is not a speedy trial provision and, in any event, is not applicable here as the record demonstrates that defendant timely answered the summons and appeared in the action. Consequently, defendant's pretrial motion was properly denied. The testimony of a police officer who is qualified to visually estimate the speed of moving vehicles, standing alone, is sufficient to support a speeding conviction where, as here, the variance between the officer's estimate of the speed of defendant's vehicle and the state maximum speed limit is "sufficiently wide, so that [the factfinder] may be certain beyond a reasonable doubt that . . . defendant exceeded the permissible limit" (People v Olsen, 22 NY2d 230, 232 [1968]; People v Tamberlane, 72 Misc 3d 128[A], 2021 NY Slip Op 50592[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). Consequently, contrary to defendant's contention, the evidence was legally sufficient to establish a violation of Vehicle and Traffic Law § 1180 (b). As the People did not require the reading taken by the laser device used by the officer to measure defendant's vehicle's speed to establish their prima facie case, even if the device's calibration records, requested by defense counsel at trial, were subject to automatic discovery, there is no reasonable possibility that the failure to provide those records contributed to the verdict (see People v Machado, 90 NY2d 187, 188-189 [1997] [under the former discovery statutes]; People v Jackson, 78 NY2d 638, 649 [1991] [same]). As to the weight of the evidence, the court specifically stated that it found the officer's [*3]testimony credible and defendant's testimony not credible. Upon an independent review of the record, we find no basis to overturn the court's credibility determinations. Moreover, even accepting defendant's testimony as true, defendant failed to establish a justification defense since his conduct was not required or authorized by law or by a judicial decree (see Penal Law § 35.05 [1]), and it was not "necessary as an emergency measure to avoid an imminent public or private injury which [wa]s about to occur by reason of a situation occasioned or developed through no fault of [defendant], and which [wa]s of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweighed the desirability of avoiding the injury sought to be prevented by" Vehicle and Traffic Law § 1180 (Penal Law § 35.05 [2]). Consequently, the People were not required to disprove defendant's testimony, and we are satisfied that the verdict convicting defendant of violating Vehicle and Traffic Law § 1180 (b) was not against the weight of the evidence. Accordingly, the judgment of conviction is affirmed. GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 20, 2022