People v. Scafe (Naheem)

People v Scafe (2022 NY Slip Op 51360(U)) [*1] People v Scafe (Naheem) 2022 NY Slip Op 51360(U) [77 Misc 3d 138(A)] Decided on December 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ 2021-481 S CR The People of the State of New York, Respondent, against Naheem A. Scafe, 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 (Stephen Bucaria, J.H.O.), rendered August 4, 2021. The judgment convicted defendant, after a nonjury trial, of speeding, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Following a nonjury trial, the judicial hearing officer (JHO) at the Suffolk County Traffic and Parking Violations Agency (SCTPVA) found defendant guilty of speeding (Vehicle and Traffic Law § 1180 [b]) for driving 100 miles per hour (mph) in a 55 mph zone and imposed sentence. Defendant's contention that the JHO who presided over the trial was prohibited from serving as a JHO in Suffolk County since he is a resident of Nassau County was first raised in a postjudgment motion and, thus, is not reviewable by this court on the instant appeal from the judgment of conviction. The pretrial suspension of defendant's driver's license, which can be suspended without notice pending prosecution (see Vehicle and Traffic Law § 510 [3-a]), was an administrative act that is not reviewable on a direct appeal (see CPL 450.10, 450.15; People v Glatman, 75 Misc 3d 131[A], 2022 NY Slip Op 50444[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Acevedo-Contreras, 74 Misc 3d 138[A], 2022 NY Slip Op 50308[U] [App Term, 2d Dept, 9th [*2]& 10th Jud Dists 2022]; People v Flierl, 73 Misc 3d 136[A], 2021 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]), but rather is reviewable by the Supreme Court in an article 78 proceeding (see Vehicle and Traffic Law § 510 [7]; Glatman, 2022 NY Slip Op 50444[U]; Acevedo-Contreras, 2022 NY Slip Op 50308[U]; Flierl, 2021 NY Slip Op 51066[U]). Defendant's contentions pertaining to his posttrial license suspension can be reviewed on appeal "as part of the judgment of conviction" (Penal Law § 60.30; see People v Wahl, 75 Misc 3d 40, 44 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Espinal, 73 Misc 3d 130[A], 2021 NY Slip Op 50946[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; see generally People v Hicks, 51 AD2d 751 [1976]; People v Yost, 50 AD2d 577 [1975]; cf. CPL 510 [7]). This court has found that Vehicle and Traffic Law § 510 (3) (a) authorizes the suspension of a driver's license by the court upon a judgment convicting a driver of violating Vehicle and Traffic Law § 1180 (b) (see also Penal Law § 60.30) and that, since Vehicle and Traffic Law § 1690 (1) authorizes a JHO to "entertain the case in the same manner as a court," a JHO at the SCTPVA is authorized to impose such a suspension (see Wahl, 75 Misc 3d at 44; People v Cataldo, 57 Misc 3d 153[A], 2017 NY Slip Op 51597[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see generally Matter of Dolce v Nassau County Traffic and Parking Violations Agency, 7 NY3d 492 [2006]). Here, the record demonstrates that, upon defendant's conviction, prior to suspending his license, the court examined his driver's abstract and took into account the fact that defendant's license had already been suspended pending the outcome of the trial. Furthermore, the order of suspension indicated that it had "appear[ed] to the court that defendant's continued operation of a motor vehicle may constitute a danger to the public welfare and safety." Consequently, as this was a permissive suspension, pursuant to Vehicle and Traffic Law § 510 (3) (a), it was not an improvident exercise of discretion for the court to have suspended defendant's driver's license for a period of nine months (see Wahl, 75 Misc 3d at 44; People v Crowley, 66 Misc 3d 133[A], 2019 NY Slip Op 52115[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Moreover, we reject defendant's contention that, when combined with the length of his pretrial license suspension, the posttrial license suspension constituted cruel and unusual punishment. Among other things, Vehicle and Traffic Law § 1690 (1) (a) authorizes a JHO at the SCTPVA to "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]; Dolce, 7 NY3d 492; Cataldo, 2017 NY Slip Op 51597[U]). "In the discharge of this responsibility, the [JHO] 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 [JHO] 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 JHO at the SCTPVA has the authority to hear and decide a pretrial motion, which is part of adjudicating a traffic offense (see People v Karathanos, 77 Misc 3d 126[A], 2022 NY Slip Op 51105[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Ruiz, 64 Misc 3d 127[A], 2019 NY Slip Op 50984[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Defendant's constitutional challenges to CPL 350.20 (5) and Vehicle and Traffic Law § 1690 (1), which authorize a referral of a traffic or parking infraction to a JHO for trial without [*3]consent of the parties, was not raised in the District Court. Consequently, this challenge is not preserved for appellate review and will not be reviewed on this appeal (see CPL 470.05 [2]; People v Iannelli, 69 NY2d 684, 685 [1986]; People v Reyes, 4 AD3d 541 [2004]; Espinal, 2021 NY Slip Op 50946[U]; People v Bruce-Ross, 59 Misc 3d 143[A], 2018 NY Slip Op 50696[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). The statutory scheme establishing the role of traffic prosecutors, who are authorized to appear in any court where appropriate to the exercise of their mandate (see General Municipal Law § 374; see generally General Municipal Law art 14-B), has been upheld against repeated constitutional and statutory challenges (see Dolce, 7 NY3d 492; People v Austin, 67 Misc 3d 143[A], 2020 NY Slip Op 50743[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Ruiz, 2019 NY Slip Op 50984[U]; People v Clark, 64 Misc 3d 127[A], 2019 NY Slip Op 50980[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Celauro, 25 Misc 3d 126[A], 2009 NY Slip Op 52015[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]). In People v Galindo (38 NY3d 199 [2022]), the Court of Appeals held that the amendments to the statutory speedy trial provisions of CPL 30.30, effective January 1, 2020, do not apply retroactively to criminal actions commenced before the amendments' effective date. Consequently, because the amended statute was not in effect when the instant action against defendant was commenced in 2019, the amended provisions of CPL 30.30 relied upon by defendant have no application to his direct appeal from the judgment of conviction herein (see Galindo, 38 NY3d at 207). In any event, the statutory speedy trial provisions of CPL 30.30, as amended effective January 1, 2020, are not applicable to an accusatory instrument that solely charges a defendant with a traffic infraction, such as is the case herein (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 (see Karathanos, 2022 NY Slip Op 51105[U]). Upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one appellate review of adverse factual findings" (People v Danielson, 9 NY3d 342, 348 [2007]). In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; Danielson, 9 NY3d 342), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888 [2006]; People v Bleakley, 69 NY2d 490 [1987]). The testimony of an officer 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 observation of the speed of defendant's vehicle (100 mph) and the posted speed limit (55 mph) 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 Acevedo-Contreras, 2022 NY Slip Op 50308[U]; People v Tamberlane, 72 Misc 3d 128[A], 2021 NY Slip Op 50592[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). In view of the foregoing, we find that the verdict convicting defendant of [*4]speeding was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]; Acevedo-Contreras, 2022 NY Slip Op 50308[U]; People v Forrester, 71 Misc 3d 127[A], 2021 NY Slip Op 50229[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). Accordingly, the judgment of conviction is affirmed. GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 22, 2022