Opinion
2020-820 S CR
04-28-2022
The People of the State of New York, Respondent, v. Samuel D. Waksal, Appellant.
Lavallee Law Offices, PLLC (Keith A. Lavallee of counsel), for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Unpublished Opinion
Lavallee Law Offices, PLLC (Keith A. Lavallee of counsel), for appellant.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
PRESENT: TIMOTHY S. DRISCOLL, J.P., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (John F. Riley, J.H.O.), rendered August 27, 2020. The judgment convicted defendant, after a nonjury trial, of speeding, and imposed sentence. The appeal brings up for review an order of that court rendered August 27, 2020 denying defendant's motions seeking to dismiss the accusatory instrument on, respectively, discovery and statutory speedy trial grounds.
ORDERED that the judgment of conviction is affirmed.
Defendant was arraigned on February 25, 2020 on a simplified traffic information charging him with speeding (Vehicle and Traffic Law § 1180 [b]). A nonjury trial was held on August 27, 2020. That day, immediately prior to the start of trial, the People presented the defense with discovery documents consisting of a copy of the uniform traffic ticket, a supporting deposition, the trooper's notes and a photograph of defendant's driver's license.
Assuming without deciding that, as defendant argues, the People violated their discovery obligation to him, it "did not prejudice [] defendant" (People v Rattray, 259 A.D.2d 569, 569 [1999]; see People v Collins, 106 A.D.3d 1544, 1546 [2013]), and "[d]efendant has not demonstrated that his trial strategy would have been significantly different" had he received the discovery material sooner (People v McInnis, 128 A.D.3d 448, 448 [2015]). Defendant declined the District Court's reasonable offer of additional time to review the documents (see CPL 245.80 [1] [a] ["When material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced"]; cf. People v McKenny, 191 A.D.3d 510, 510 [2021]). The lack of prejudice is further illustrated by defense counsel's unequivocal declaration to the District Court that, despite having just received the discovery, the defense was prepared to proceed immediately to trial. Defendant's further claim, that there existed additional discoverable material that was never turned over to the defense, is "substantially based on matter dehors the record, which cannot be reviewed on direct appeal" (People v Knowlden, 43 A.D.3d 960, 960-961 [2007]). Thus, the District Court properly denied defendant's motion to dismiss based on discovery violations.
Defendant also protests the District Court's denial of his motion to dismiss the matter on statutory speedy trial grounds, which he made orally (but see CPL 210.45 [1]; People v Lawrence, 64 N.Y.2d 200, 203 [1984]; People v Bowman, 65 Misc.3d 126 [A], 2019 NY Slip Op 51488[U], *1 [App Term, 1st Dept 2019] [recognizing the applicability of CPL 210.45 [1]) on the eve of trial. Although the current CPL 30.30 statute that went into effect on January 1, 2020 incorporates traffic infractions as an "offense" under its ambit (CPL 30.30 [1] [e]), it only does so when the charges include at least one felony, misdemeanor or violation in addition to a traffic infraction (see CPL 30.30 [1] [a] - [e]). Thus, the speedy trial statute remains inapplicable where, as here, only a traffic infraction is charged in the accusatory instrument. Consequently, the District Court correctly denied defendant's motion to dismiss the simplified traffic information on statutory speedy trial grounds.
Defendant's constitutional speedy trial claim on appeal is unpreserved, and we decline to review it as a matter of discretion in the interest of justice. In any event, it is unavailing as "the extent of the delay" is not particularly egregious in light of the fact that "the reason for the delay" was at least partially attributable to the COVID-19 pandemic, and there is no "indication that the defense has been impaired by reason of the delay" (People v Taranovich, 37 N.Y.2d 442, 445 [1975]).
A New York State Trooper was the sole trial witness. He testified that, on November 9, 2019, he was on patrol on the Northern State Parkway, which has a speed limit of 55 miles per hour (mph), when he observed defendant's vehicle and visually estimated, as he was trained to do in the New York State Police Academy, that it was traveling at a rate of 100 mph. He confirmed his visual estimate using a radar unit that clocked defendant traveling between 98 and 101 mph. Over defendant's objection, the trooper testified that defendant said he was going to visit his father in the hospital and that his mind was somewhere else.
Viewing the trial evidence in the light most favorable to the People, we are satisfied that defendant's conviction was based upon legally sufficient evidence. Defendant's claim that the trooper's ability to estimate vehicular speeds may have diminished since his time at the Police Academy is completely speculative and fails to take into account the fact that the visual estimate was confirmed by radar (see People v Knight, 72 N.Y.2d 481 [1988]; People v Dusing, 5 N.Y.2d 126, 127-128 [1959]). Furthermore, "[i]t is well settled that even the uncorroborated testimony of a qualified police officer as to a vehicle's rate of speed is legally sufficient to support a conviction of violating section 1180 of the Vehicle and Traffic Law so long as 'the variance between the estimated speed and maximum permissible speed is sufficiently wide so that... [the fact finder] may be certain beyond a reasonable doubt that [] defendant exceeded the permissible limit'" (People v Kogosov, 15 Misc.3d 139 [A], 2007 NY Slip Op 50944[U], * 1 [App Term, 2d Dept, 9th & 10th Jud Dists 2007], quoting People v Olsen, 22 N.Y.2d 230, 232 [1968]).
Defendant's concomitant claim, that the radar unit may have registered the speed of another vehicle that the trooper incorrectly accorded to defendant's, is equally unavailing. The trooper testified that defendant's vehicle was nearly one-third of a mile away from the nearest vehicle, and there is no basis for doubting that the trooper was looking specifically at defendant's vehicle while visually estimating its speed prior to using the radar unit. Defendant's conviction was also not against the weight of the evidence.
Defendant further contends on appeal that the District Court erred by overruling his objection to the trooper testifying about allegedly unnoticed statements attributed to defendant (see CPL 710.30 [1] [a]). However, even assuming that admission of the statements was error, it was harmless since" 'the proof of [] defendant's guilt, without reference to the error, is overwhelming' and [] there is no 'significant probability... that the [factfinder] would have acquitted the defendant had it not been for the error'" (People v Arafet, 13 N.Y.3d 460, 467 [2009], quoting People v Crimmins, 36 N.Y.2d 230, 241-242 [1975]).
Following the trial, the court sentenced defendant to a $500 fine, which defendant now complains is excessive. According to defendant's Department of Motor Vehicles driving record, he was convicted in 2017 of driving 15 mph over the speed limit in Manhattan, and at the time of sentencing there was another, still-pending speeding case against defendant in the County of Suffolk. Under the circumstances presented, we do not believe that the $500 fine, which was $250 less than the $750 maximum fine the court could have imposed (see Vehicle and Traffic Law § 1180 [h] [1] [iii]; [5]), was excessive.
Accordingly, the judgment of conviction is affirmed.
DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur.