Appeal from a judgment of the Justice Court of the Village of Sea Cliff, Nassau County (John P. Reali, J.), rendered March 7, 2012. The judgment convicted defendant, after a nonjury trial, of using a mobile telephone while operating a motor vehicle.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a simplified traffic information with using a mobile telephone while operating a motor vehicle (Vehicle and Traffic Law § 1225-c [2] [a]). At a nonjury trial held on March 7, 2012, a police officer testified on behalf of the People that, on March 11, 2008, he had observed defendant engaged in a call on a hand-held mobile telephone while operating his motor vehicle. After cross-examining the officer, defendant orally moved to dismiss the information based on constitutional speedy trial grounds, which motion was not opposed by the People. The Justice Court denied the motion. Defendant testified on his own behalf and admitted that he had been talking on the telephone while driving, but contended that the telephone had been hanging on his vehicle's rear-view mirror. Following the trial, the Justice Court convicted defendant of the charged offense. On appeal, defendant contends that his constitutional right to a speedy trial was violated and that the verdict was against the weight of the evidence.

Since defendant failed to make his speedy trial motion prior to the commencement of trial and did not make an application for an extension of time, the motion was properly denied by the Justice Court (see CPL 170.30 [2] People v Lawrence, 64 NY2d 200, 203 [1984] People v Key, 45 NY2d 111, 116 [1978]). The untimeliness of such a motion cannot be waived by the People's failure to object (see People v Jennings, 69 NY2d 103, 113 [1986] Lawrence, 64 NY2d at 207).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5] People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony and observe their demeanor (see People v Mateo, 2 NY3d 383, 410 [2004] People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, particularly the testimony of the police officer who observed defendant engaged in a call on a mobile telephone, which was located in his hand near his head while the vehicle that he was operating was in motion, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Accordingly, the judgment of conviction is affirmed. [*2]

Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: April 18, 2014