People v. Rapheal (Ryan)

People v Rapheal (2022 NY Slip Op 51359(U)) [*1] People v Rapheal (Ryan) 2022 NY Slip Op 51359(U) [77 Misc 3d 137(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: : TIMOTHY S. DRISCOLL, J.P., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ 2021-375 S CR The People of the State of New York, Respondent, against Ryan B. Rapheal, 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 (Debra Urbano-DiSalvo, J.H.O.), rendered May 13, 2021. The judgment convicted defendant, after a nonjury trial, of speeding, and imposed sentence. ORDERED that the judgment of conviction is affirmed. On May 2, 2019, defendant was charged in a simplified traffic information with speeding (Vehicle and Traffic Law § 1180 [d]). Defendant appeared pro se in court on June 21, 2019 and the court entered a plea of not guilty on his behalf. The prosecutor made an application, pursuant to Vehicle and Traffic Law § 510 (3) (a), to suspend defendant's driver's license pending prosecution and, after allowing defendant an opportunity to be heard, the court granted the application and issued an order of suspension. By notice of motion dated May 27, 2020, defendant, who was then represented by counsel, moved to transfer the matter from the Suffolk County Traffic and Parking Violations Agency (SCTPVA) to the Suffolk County District Court for a determination of the motion and, upon such transfer, for an order, pursuant to CPL 170.30 (1) (f), dismissing the charge against him based upon, among other things, his statutory right to a speedy trial. The People opposed the motion and, in a decision and order entered October 6, 2020, the court (John G. Marks, J.H.O.) denied it. By notice of motion dated December 11, 2020, defendant moved for leave to renew the branch of his prior motion seeking to dismiss the [*2]accusatory instrument on statutory speedy trial grounds based on an alleged change in the law. The People opposed the motion and, in an order entered February 5, 2021, the court (John G. Marks, J.H.O.) granted defendant leave to renew, but adhered to its prior decision. Following a nonjury trial, the court (Debra Urbano-DiSalvo, J.H.O.) found defendant guilty and imposed sentence. The pretrial suspension of defendant's driver's license was an administrative act which 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 & 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]; People v Pocrass, 57 Misc 3d 153[A], 2017 NY Slip Op 51596[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]), but rather is reviewable only 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]; Pocrass, 2017 NY Slip Op 51596[U]). Additionally, we find no merit to defendant's contention that the pretrial suspension of his driver's license violated the Double Jeopardy Clause (see Vehicle and Traffic Law § 510 [7]; Acevedo-Contreras, 2022 NY Slip Op 50308[U]; see generally People v DeRojas, 196 Misc 2d 171 [App Term, 2d Dept, 9th & 10th Jud Dists 2003]; People v Malone, 175 Misc 2d 893 [App Term, 2d Dept, 9th & 10th Jud Dists 1997]; People v Conrad, 169 Misc 2d 1066 [App Term, 2d Dept, 9th & 10th Jud Dists 1996]). CPL 350.20 (5) provides that "for all proceedings before the district court of Suffolk 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 [2021] ["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, 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]). In People v Galindo (38 NY3d 199 [2022]), the Court of Appeals held that the statutory speedy trial provisions of CPL 30.30, as amended effective January 1, 2020, do not apply retroactively to criminal actions commenced before its effective date. Consequently, because the amended statute was not in effect when the instant action against defendant was commenced in [*3]2019, the statutory speedy trial provisions of CPL 30.30 have no application to defendant's 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 (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. In view of the foregoing, the court properly denied the branches of defendant's pretrial motions seeking dismissal based upon speedy trial grounds. 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 (88 miles per hour) and the posted speed limit (45 miles per hour) 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]). Moreover, a police officer's trained visual estimate of a defendant's speed and his use of a speedometer to confirm his speed estimate is sufficient to establish such speed, even without proof of the speedometer's calibration (see People v Goldberg, 61 Misc 3d 129[A], 2018 NY Slip Op 51389[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Kennedy, 49 Misc 3d 138[A], 2015 NY Slip Op 51564[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; see generally People v Dusing, 5 NY2d 126, 128 [1959]). Consequently, we find that the verdict convicting defendant of 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]). Defendant's remaining contentions have been withdrawn. Accordingly, the judgment of conviction is affirmed. DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 22, 2022