Opinion
2021-819 S CR
03-30-2023
The PEOPLE of the State of New York, Respondent, v. Meagan ARTECA, Appellant.
Scott Lockwood, Deer Park, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Scott Lockwood, Deer Park, for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
PRESENT: JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, JAMES P. McCORMACK, JJ.
ORDERED that the judgment of conviction is affirmed.
Following a nonjury trial, the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (SCTPVA) (Kenneth S. Diamond, J.H.O.) 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 judicial hearing officer (JHO) who presided over the trial was prohibited from serving as a JHO at the SCTPVA because he was a resident of Nassau County is without merit, as the record fails to demonstrate that he was not a resident of Suffolk County. In any event, to support this contention, defendant cites to provisions of the New York State Constitution (art VI, § 16 [h]) and the Suffolk County Charter (§ C25-4 [A]), which compel judges of the District Court to be residents of the district where the court is situated. Yet, defendant fails to cite to any constitutional or statutory provision which imposes a residency requirement on a JHO at the SCTPVA. Rather, CPL 350.20 (5) and Vehicle and Traffic Law § 1690 (1) provide that the administrative judge of Suffolk County may assign JHOs to preside over matters conducted at the SCTPVA and the only requirements for such JHOs are set forth in Vehicle and Traffic Law § 1690 (1), which states that "[s]uch judicial hearing officers shall be village court justices or retired judges either of which shall have at least two years of experience conducting trials of traffic and parking violations cases and shall be admitted to practice law in this state" (see Administrative Order of the Administrative Judge of Suffolk County [No. 103-18]; Matter of Reyes v. SCTPVA , index No. 623973/2021 [Sup Ct, Suffolk County 2021]).
Contrary to defendant's further contention, a JHO at the SCTPVA has the authority to hear and decide a pretrial motion, which is part of the process of adjudicating a traffic offense (see People v. Karathanos , 77 Misc.3d 126[A], 2022 N.Y. Slip Op. 51105[U], 2022 WL 16955224 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2022] ; People v. Ruiz , 64 Misc.3d 127[A], 2019 N.Y. Slip Op. 50984[U], 2019 WL 2519326 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2019] ). Moreover, contrary to defendant's contention, Vehicle and Traffic Law § 1806-a (1) is not a speedy trial provision (see Karathanos , 2022 N.Y. Slip Op. 51105(U) ).
The pretrial suspension of defendant's driver's license, which license 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 N.Y. Slip Op. 50444[U], 2022 WL 1763558 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2022] ; People v. Acevedo-Contreras , 74 Misc.3d 138[A], 2022 N.Y. Slip Op. 50308[U], 2022 WL 1162689 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2022] ; People v. Flierl , 73 Misc.3d 136[A], 2021 N.Y. Slip Op. 51066[U], 2021 WL 5292574 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2021] ), but rather is reviewable only by the Supreme Court in an article 78 proceeding (see Vehicle and Traffic Law § 510 [7] ; Glatman , 2022 N.Y. Slip Op. 50444[U] ; Acevedo-Contreras , 2022 N.Y. Slip Op. 50308[U] ; Flierl , 2021 N.Y. Slip Op. 51066[U] ).
Defendant's contentions pertaining to her posttrial license suspension, which is "part of the judgment of conviction" ( Penal Law § 60.30 ), can be reviewed on this appeal from the judgment (see People v. Wahl , 75 Misc.3d 40, 44, 168 N.Y.S.3d 205 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2022] ; People v. Espinal , 73 Misc.3d 130[A], 2021 N.Y. Slip Op. 50946[U], 2021 WL 4736531 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2021] ; see generally People v. Hicks , 51 A.D.2d 751, 379 N.Y.S.2d 457 [1976] ; People v. Yost , 50 A.D.2d 577, 374 N.Y.S.2d 704 [1975] ; cf. Vehicle and Traffic Law § 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, 168 N.Y.S.3d 205 ; Espinal , 2021 N.Y. Slip Op. 50946[U] ; People v. Cataldo , 57 Misc.3d 153[A], 2017 N.Y. Slip Op. 51597[U], 2017 WL 5711516 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017] ; see generally Matter of Dolce v. Nassau County Traffic and Parking Violations Agency , 7 N.Y.3d 492, 825 N.Y.S.2d 663, 859 N.E.2d 469 [2006] ). Here, the record demonstrates that, upon defendant's conviction, prior to suspending her license, the court examined her driver's abstract. 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 90 days (see Wahl , 75 Misc.3d at 44, 168 N.Y.S.3d 205 ; People v. Crowley , 66 Misc.3d 133[A], 2019 N.Y. Slip Op. 52115[U], 2019 WL 7414944 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2019] ).
Additionally, we find no merit to defendant's contention that, since her driver's license had already been suspended pretrial, the posttrial license suspension constituted a violation of the principles of double jeopardy(see generally People v. Rapheal , 77 Misc.3d 137[A], 2022 N.Y. Slip Op. 51359[U], 2022 WL 18635419 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2022] ; Acevedo-Contreras , 2022 N.Y. Slip Op. 50308[U] ; People v. DeRojas , 196 Misc.2d 171, 763 N.Y.S.2d 386 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2003] ; People v. Malone , 175 Misc.2d 893, 673 N.Y.S.2d 809 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 1997] ; People v. Conrad , 169 Misc.2d 1066, 654 N.Y.S.2d 226 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 1996] ).
Defendant's constitutional challenges to CPL 350.20 (5) and Vehicle and Traffic Law § 1690 [1], which authorize a referral for trial to a JHO without the consent of the parties, was not raised in the District Court. Consequently, this challenge is not preserved for appellate review and we decline to review it (see CPL 470.05 [2] ; People v. Iannelli , 69 N.Y.2d 684, 685, 512 N.Y.S.2d 16, 504 N.E.2d 383 [1986] ; People v. Reyes , 4 A.D.3d 541, 771 N.Y.S.2d 706 [2004] ; Espinal , 2021 N.Y. Slip Op. 50946[U] ; People v. Bruce-Ross , 59 Misc.3d 143[A], 2018 N.Y. Slip Op. 50696[U], 2018 WL 2270686 [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 Matter of Dolce , 7 N.Y.3d 492, 825 N.Y.S.2d 663, 859 N.E.2d 469 ; People v. Austin , 67 Misc.3d 143[A], 2020 N.Y. Slip Op. 50743[U], 2020 WL 3494489 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020] ; Ruiz , 2019 N.Y. Slip Op. 50984[U] ; People v. Clark , 64 Misc.3d 127[A], 2019 N.Y. Slip Op. 50980[U], 2019 WL 2519391 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2019] ; People v. Celauro , 25 Misc.3d 126[A], 2009 N.Y. Slip Op. 52015[U], 2009 WL 3188674 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2009] ).
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 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5] ; Danielson , 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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 N.Y.3d 888, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; People v. Bleakley , 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [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 N.Y.2d 230, 232, 292 N.Y.S.2d 420, 239 N.E.2d 354 [1968] ; see Acevedo-Contreras , 2022 N.Y. Slip Op. 50308[U] ; People v. Tamberlane , 72 Misc.3d 128[A], 2021 N.Y. Slip Op. 50592[U], 2021 WL 2604514 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2021] ). In view of the foregoing, and the fact that the court found the officer who had testified to be "very credible and reliable," we find that the verdict convicting defendant of speeding was not against the weight of the evidence (see People v. Romero , 7 N.Y.3d 633, 643-646, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; Acevedo-Contreras , 2022 N.Y. Slip Op. 50308[U] ; People v. Forrester , 71 Misc.3d 127[A], 2021 N.Y. Slip Op. 50229[U], 2021 WL 1096613 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2021] ).
Accordingly, the judgment of conviction is affirmed.
GARGUILO, P.J., DRISCOLL and McCORMACK, JJ., concur.