Supreme Court, Appellate Term, Second Department, October 22, 2004

APPEARANCES OF COUNSEL

James R. Tompkins, appellant pro se.

Memorandum.

{**6 Misc 3d at 31}Judgment of conviction unanimously reversed, on the law and as a matter of discretion in the interest of justice, accusatory instrument dismissed and fine, if paid, remitted.

Defendant was charged with driving a vehicle which had excessively tinted side windows (see Vehicle and Traffic Law § 375 [12-a] [b]). At trial, the officer testified that he estimated that the windows only permitted about 15% light transmittance. Although such a percentage of light transmittance is below the legal threshold (id.), the officer did not establish that he possessed any experience in visually determining the amount of light transmitted through a window, or some other satisfactory reason or basis, such as a "tint-meter," for his opinion. As a result, the evidence was legally insufficient to establish the defendant's guilt beyond a reasonable doubt (cf. People v Olsen, 22 NY2d 230 [1968]). Although defendant did not properly preserve his objection to the sufficiency of the evidence, we nevertheless review it in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]).

Consequently, we do not pass on defendant's remaining contentions.

McCabe, P.J., Rudolph and Angiolillo, JJ., concur.