| People v Flierl (Marcella) |
| 2021 NY Slip Op 51065(U) [73 Misc 3d 135(A)] |
| Decided on November 4, 2021 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Alan M. Wolinsky, J.H.O.), rendered December 11, 2019. The judgment, after a nonjury trial, convicted defendant of speeding, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
After a nonjury trial, defendant was convicted of speeding (Vehicle and Traffic Law § 1180 [b]), the sole offense charged.
The pretrial suspension of defendant's driver's license, which can be suspended without notice pending prosecution (see Vehicle and Traffic Law § 510 [3-a]), was an administrative act which is reviewable only by the Supreme Court in an article 78 proceeding (see Vehicle and Traffic Law § 510 [7]; People v Pocrass, 57 Misc 3d 153[A], 2017 NY Slip Op 51596[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]) and is not reviewable on a direct appeal (see CPL 450.10, 450.15; Pocrass, 2017 NY Slip Op 51596[U]).
We find that it was not an improvident exercise of discretion for the court to have denied [*2]defendant's application for recusal, which decision should not be lightly overturned as defendant did not raise a mandatory legal disqualification claim under Judiciary Law § 14 (see People v Moreno, 70 NY2d 403, 405 [1987]; Matter of Khan v Dolly, 39 AD3d 649 [2007]; People v DeRaffele, 66 Misc 3d 41, 49 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Fehrenbach, 64 Misc 3d 130[A], 2019 NY Slip Op 51034[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]).
To the extent that defendant's contentions pertaining to his conviction are considered legal insufficiency claims, they are not preserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). Nonetheless, upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one appellate review of adverse factual findings" (People v Danielson, 9 NY3d 342, 348 [2007]). Following a review of the record, we conclude that the verdict convicting defendant of speeding was not against the weight of the evidence (see People v Olsen, 22 NY2d 230, 232 [1968]; People v Dusing, 5 NY2d 126, 128 [1959]; People v Forrester, 71 Misc 3d 127[A], 2021 NY Slip Op 50229[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Jacobs, 62 Misc 3d 126[A], 2018 NY Slip Op 51852[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
We have reviewed defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit (see People v Espinal, ___ Misc 3d ____, 2021 NY Slip Op 50946[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; Forrester, 2021 NY Slip Op 50229[U]; People v Massian, 60 Misc 3d 134[A], 2018 NY Slip Op 51049[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Cataldo, 57 Misc 3d 153[A], 2017 NY Slip Op 51597[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]).
Accordingly, the judgment of conviction is affirmed.
EMERSON, J.P., DRISCOLL and VOUTSINAS, JJ., concur.