People v. Smith (Laura)

People v Smith (2022 NY Slip Op 51226(U)) [*1] People v Smith (Laura) 2022 NY Slip Op 51226(U) [77 Misc 3d 130(A)] Decided on November 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 17, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ 2018-592 S CR The People of the State of New York, Respondent, against Laura A. Smith, Appellant. Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent. Appeal from judgments of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (W. Alexander Melbardis, J. H. O.), rendered January 23, 2018. The judgments convicted defendant, after a nonjury trial, of operating a motor vehicle with an expired inspection certificate, operating an unregistered motor vehicle and operating a motor vehicle on a public highway with improper license plates, respectively, and imposed sentences. ORDERED that the judgment convicting defendant of operating a motor vehicle on a public highway with improper license plates is affirmed; and it is further, ORDERED that so much of the appeal as is from the judgments convicting defendant of operating a motor vehicle with an expired inspection certificate and operating an unregistered motor vehicle is dismissed. Defendant was charged in separate simplified traffic informations with operating a motor vehicle with an expired inspection certificate (Vehicle and Traffic Law § 306 [b]), operating a motor vehicle without insurance (Vehicle and Traffic Law § 319 [1]), operating an unregistered [*2]motor vehicle (Vehicle and Traffic Law § 401 [1] [a]) and operating a motor vehicle on a public highway with improper license plates (Vehicle and Traffic Law § 402 [4]), respectively. Prior to trial, upon opposing a motion by defendant, the People sought to impose sanctions on defendant's attorney, Scott Lockwood, Esq., on the ground that the motion was frivolous and that counsel had made similarly frivolous motions in other cases. Upon denying defendant's motion, the Judicial Hearing Officer (J.H.O.) barred Scott Lockwood from making any motions in the Suffolk County Traffic and Parking Violations Agency (SCTPVA) without first obtaining leave of court. At a nonjury trial, a police officer testified that he ran defendant's license plate number on the patrol car computer linked to the New York Department of Motor Vehicles (DMV) database, which showed that the plate number did not correspond with the make and model of defendant's vehicle. Defense counsel's objection to the admission of this testimony on the ground that it was hearsay was overruled by the court. The officer testified that, after stopping defendant's vehicle, he requested her license and registration. She did not produce either of these documents. Additionally, the officer observed that the inspection certificate on the windshield of defendant's vehicle had expired. The officer then issued defendant several citations. Following the trial, the court convicted defendant of operating a motor vehicle with an expired inspection certificate, operating an unregistered motor vehicle and operating a motor vehicle on a public highway with improper license plates, respectively, and sentenced her to various fines. The court's return to defendant's affidavit of errors states, among other things, that it did not bar defense counsel from making any motions in this case. On appeal, defendant contends that the verdict convicting her of operating a motor vehicle on a public highway with improper license plates is against the weight of the evidence because the court erroneously relied on the officer's testimony regarding the DMV information that he obtained from the patrol vehicle's computer. Next, defendant contends, for the first time on appeal, that a judicial hearing officer is not authorized to determine a pretrial motion and that so much of the order as granted the People's application to preclude defense counsel from making motions in the SCTPVA without first obtaining leave of court should have been denied. We agree that the court erred in admitting into evidence, over defense counsel's objection, inadmissible hearsay, namely, the testimony regarding DMV information obtained by the police officer from the patrol vehicle's on-board computer to establish defendant's guilt of operating a motor vehicle on a public highway with improper license plates (see People v Clark, 64 Misc 3d 127[A], 2019 NY Slip Op 50980[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; cf. People v Mayes, 19 Misc 3d 48 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). The People never sought to place certified documentation of this DMV information into evidence (see Clark, 2019 NY Slip Op 50980[U]; cf. Mayes, 19 Misc 3d 48). Notwithstanding the erroneous admission of the DMV information, the officer's testimony that defendant failed to produce the vehicle registration was "presumptive evidence of [*3]displaying number plates not proper for the vehicle" (Vehicle and Traffic Law § 402 [4]). Consequently, "the burden shifted to the defendant to establish" otherwise (see Clark, 2019 NY Slip Op 50980[U], *4), but she failed to proffer evidence rebutting this presumption. In view of the foregoing, we find that the verdict convicting defendant of operating a motor vehicle on a public highway with improper license plates (Vehicle and Traffic Law § 402 [4]) was not against the weight of the evidence. The portion of the December 11, 2017 order barring Scott Lockwood from making any motions in the SCTPVA without first obtaining leave of court is not reviewable on this appeal from the judgment of conviction, as such review is limited by the "plain terms" of CPL 470.15 (1) "to errors that adversely affected the appellant in the criminal . . . proceedings from which the appeal is sought . . . [and] not errors that 'may adversely affect the appellant' in some other proceeding not before the appellate court" (People v Francis, 34 NY3d 464, 471-472 [2020]). As no reviewable issue is raised with respect to the judgments convicting defendant of operating a motor vehicle with an expired inspection certificate and operating an unregistered motor vehicle, so much of the appeal as is from these judgments of conviction is dismissed. Accordingly, the judgment convicting defendant of operating a motor vehicle on a public highway with improper license plates is affirmed. GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 17, 2022