Opinion
2018-1930 S CR
08-27-2020
The PEOPLE of the State of New York, Respondent, v. Anthony DESABATO, Appellant.
Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Scott Lockwood, for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ.
ORDERED that the judgments of conviction are reversed, on the law, the fines, if paid, are remitted, and the matter is remitted to the District Court of Suffolk County, Traffic and Parking Violations Agency, for all further proceedings.
The People charged defendant, in simplified traffic informations, with driving on the shoulder ( Vehicle and Traffic Law § 1131 ) and unlicensed operation of a motor vehicle ( Vehicle and Traffic Law § 509 [1] ), respectively. Defendant pleaded not guilty. When defendant and his attorney failed to appear for the scheduled trial on June 26, 2018, the court entered judgments on default against defendant without conducting a trial, and sentenced defendant to fines. On appeal, defendant contends, among other things, that the default judgments are improper. We agree.
While Vehicle and Traffic Law § 1806-a (1) permits "a default judgment of a fine" to be entered against a defendant who has been charged with a traffic infraction but fails to "answer within the time specified," the statute expressly provides that "[w]hen a person has entered a plea of not guilty and has demanded a hearing, no fine or penalty shall be imposed for any reason, prior to the holding of the hearing which shall be scheduled by the traffic and parking violations agency." As defendant pleaded not guilty to the charges and requested a trial, and since no trial was held before the court entered the judgments, the judgments must be reversed (see People v. Cucceraldo , 64 Misc 3d 30 [App Term, 2d Dept, 9th & 10th Jud Dists 2019], lv granted 34 NY3d 979 [2019] ; People v. Iverson , 63 Misc 3d 163[A], 2019 NY Slip Op 50930[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019], lv granted 34 NY3d 981 [2019] ; People v. Cole , 63 Misc 3d 149[A], 2019 NY Slip Op 50729[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v. Hernandez , 62 Misc 3d 9 [App Term, 2d Dept, 9th & 10th Jud Dists 2018], lv denied 33 NY3d 1032 [2019] ).
In view of the foregoing, defendant's remaining contentions have been rendered academic (see People v. Iverson , 63 Misc 3d 163[A], 2019 NY Slip Op 50930[U] ).
Accordingly, the judgments of conviction are reversed and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Violations Agency, for all further proceedings.
ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.