|People v Rankel (Robert)|
|2014 NY Slip Op 51160(U) [44 Misc 3d 134(A)]|
|Decided on July 24, 2014|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from a judgment of the City Court of White Plains, Westchester County (Barbara A. Leak, J.), rendered March 16, 2012. The judgment convicted defendant, after a nonjury trial, of speeding.
ORDERED that the judgment of conviction is reversed, on the law, the fine and surcharge if paid, are remitted, and the matter is remitted to the City Court for a new trial.
On February 10, 2012, the People charged defendant, in a simplified traffic information, with speeding (Vehicle and Traffic Law § 1180 [d]), alleging that on February 10, 2012, at 10:51 a.m., on Tarrytown Road near School Street in White Plains, Westchester County, defendant traveled 51 miles per hour in a 30 miles per hour speed zone. Only the officer who issued the simplified traffic information appeared for the People, and defendant appeared pro se. The City Court took judicial notice that the City's speed limit is 30 miles per hour except where otherwise posted, and, with the exception of the officer's brief cross-examination of defendant, the court conducted the examinations of the witnesses. Following the trial, the court convicted defendant upon what appeared to be defendant's admission that he had violated the speed limit as charged. On appeal, defendant argues, among other things, that the City Court's conduct of the trial prejudiced him, as the court assumed the role of a prosecutor; that he was denied his rights to counsel and to remain silent; and that the proof was legally insufficient to support the verdict, which was, in any event, against the weight of the evidence.
We find nothing improper in the City Court's questioning of the police officer who issued the summons, in the absence of a prosecutor or a local official authorized to present the case, and where the officer issuing the ticket has been delegated the function of prosecuting the case (see County Law § 700 ; People v Soddano, 86 NY2d 727, 728 ; People v Pappas, 19 Misc 3d 140[A], 2008 NY Slip Op 50903[U], *1 [App Term, 9th & 10th Jud Dists 2008]). In such circumstances, a trial court may conduct the questioning of a witness "to elicit sufficient facts to enable [it] to reach a decision" (People v DeLeyden, 10 NY2d 293, 294 ). We also find that the evidence was legally sufficient to support the conviction. The officer testified that, at the location of the offense, the speed limit is 30 miles per hour as indicated by multiple signs; that he had employed a calibrated radar device, which had measured defendant's speed as 51 miles per hour; and as to his ability to estimate the speed of a moving vehicle within five miles per hour of the true speed. As "the variance between the officer's visual observation of the speed of defendant's vehicle and the posted speed limit was sufficiently wide . . . the [factfinder could conclude] beyond a reasonable doubt that the defendant exceeded the permissible limit' " (People v Raghubir, 39 Misc 3d 138[A], 2012 NY Slip Op 52476[U], *2 [App Term, 9th & 10th Jud Dists 2012], quoting People v Olsen, 22 NY2d 230, 232 ). The officer's unchallenged proof that the radar device had been properly calibrated further supported the City Court's determination that defendant was guilty of speeding (People v Dusing, 5 NY2d 126, 128 ). In the exercise of our responsibility to conduct an independent review of the weight of the [*2]evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), and according the requisite deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (People v Mateo, 2 NY3d 383 ; People v Bleakley, 69 NY2d 490 ), we find that the conviction was not against the weight of the credible evidence. However, defendant's claim that he was denied the right to counsel has merit. As the penalties upon a conviction of speeding 21 miles per hour over the speed limit include 15 days' incarceration (see Vehicle and Traffic Law § 1180 [h]  [ii]), defendant was entitled to the assistance of counsel at his trial (cf. People v Russo, 149 AD2d 255, 258 ). It is undisputed that the City Court never advised defendant of his right to counsel, or of his right to an adjournment to obtain counsel, nor did the court inquire as to defendant's desire to proceed without counsel and elicit his understanding of the risks and consequences of proceeding without an attorney (see CPL 170.10  [a], [c];  [a]; People v Raghubir, 39 Misc 3d 138[A], 2012 NY Slip Op 52476[U], *2; People v Schonfeld, 26 Misc 3d 74, 76 [App Term, 9th & 10th Jud Dists 2009]).
In light of the foregoing, we need not address defendant's remaining contentions (cf. People v Berger, 16 Misc 3d 133[A], 2007 NY Slip Op 51498[U] [App Term, 9th & 10th Jud Dists 2007]).
Accordingly, the judgment of conviction is reversed, the fine and surcharge, if paid, are remitted, and the matter is remitted to the City Court for a new trial.
Iannacci, J.P., Tolbert and Garguilo, JJ., concur.