People v Davidson

Appellate Term of the Supreme Court, Appellate Term, Second Department, 9th And 10th Judicial Districts

Decided on July 29, 2025

2024-516 N CR

Present: : Jerry Garguilo, P.J., Timothy S. Driscoll, Elena Goldberg-Velazquez, JJ

Jon Davidson, appellant pro se. Leventhal, Mullaney & Blinkoff, LLP (Jeffrey Blinkoff of counsel), for respondent.

Appeal from a judgment of the Justice Court of the Village of Flower Hill, Nassau County (Dennis Marc Reisman, J.), rendered April 4, 2024. The judgment, after a nonjury trial, convicted defendant of disobeying a traffic control device, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial, the Justice Court (Dennis Marc Reisman, J.) convicted defendant of disobeying a traffic control device (Vehicle and Traffic Law § 1110 [a]) for driving at a speed of 60 miles per hour (mph) in violation of a posted 45 mph speed limit sign, and imposed sentence.

Defendant's legal insufficiency claim is not preserved for appellate review since he failed to move for dismissal before the Justice Court (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]; People v Matthews, 71 Misc 3d 126[A], 2021 NY Slip Op 50223[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). However, 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]). "Necessarily, in conducting its weight of the evidence review, a court must consider the elements of the [offense], for even if the prosecution's witnesses were credible their testimony must prove the elements of the [offense] beyond a reasonable doubt" (id. at 349). If a finding in favor of the defendant "would not have been unreasonable" (People v Curry, 112 AD3d 843, 844 [2013]), this court "must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (Danielson, 9 NY3d at 348). Nonetheless, great deference is accorded to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, [*2]495 [1987]). If it appears that the factfinder failed to give the evidence the weight it should be accorded, this court may reverse the judgment of conviction and dismiss the accusatory instrument (see CPL 470.20 [5]; People v Romero, 7 NY3d 633, 643-644 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]). If it appears that the trier of fact gave the evidence the weight it should be accorded, then the verdict should not be disturbed (see CPL 470.15 [5]; Danielson, 9 NY3d 342).

Vehicle and Traffic Law § 1110 (a) provides:

"Every person shall obey the instructions of any official traffic-control device applicable to him placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this title."

"Traffic-control devices" are defined in Vehicle and Traffic Law § 153 as:

"All signs, signals, markings, and devices not inconsistent with this chapter placed or erected by authority of a public body or official having jurisdiction for the purpose of regulating, warning or guiding traffic."

Thus, a speed limit sign is considered to be a "traffic-control device" under the Vehicle and Traffic Law and the statutory presumptions contained in Vehicle and Traffic Law § 1110 (c) and (d) apply thereto (see People v Smith, 13 Misc 3d 131[A], 2006 NY Slip Op 51862[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]). Consequently, this court has found it permissible to prosecute a defendant for speeding in violation of Vehicle and Traffic Law § 1110 (a) (see People v Chittenden, 52 Misc 3d 152[A], 2016 NY Slip Op 51195[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v Gbadebo, 50 Misc 3d 141[A], 2016 NY Slip Op 50200[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

Although the reading of an untested speedometer, standing alone, is insufficient to establish, beyond a reasonable doubt, the speed of a moving vehicle (see People v Dusing, 5 NY2d 126, 127-128 [1959]; People v Heyser, 2 NY2d 390, 393 [1957]; People v Legnetti, 73 Misc 3d 36, 39 [App Term, 2d Dept, 9th & 10th Jud Dists 2021]), the reading of an untested speedometer, when taken in conjunction with a qualified officer's visual estimate, is legally sufficient (see Dusing, 5 NY2d at 128; People v Wahl, 75 Misc 3d 40, 44 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Legnetti, 73 Misc 3d at 39; People v Goldmann, 61 Misc 3d 149[A], 2018 NY Slip Op 51746[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

Here, the Nassau County Police Officer who issued the traffic ticket to defendant testified that he was trained to make an independent visual estimation of the speed of a moving vehicle within three to four mph of its actual speed and to corroborate that estimation by pacing the vehicle with his patrol vehicle's speedometer. On October 21, 2023, he was patrolling Flower Hill in an unmarked police vehicle, the speedometer of which was allegedly calibrated, although he proffered no proof thereof. At approximately 8 p.m., he observed defendant traveling westbound on Northern Boulevard and made an independent visual estimation that the vehicle was traveling"about 60-ish" mph. The officer followed the Hyundai on Northern Boulevard and paced it, as he was trained to do, and he testified that his vehicle's speedometer gave a reading of 60 mph. He also testified that, when he gave defendant the ticket, defendant said that he was not driving 60 mph, rather, he was "doing" 55 mph. Additionally, the officer testified that, between [*3]where he first observed the Hyundai and where he pulled it over, there is a white and black speed limit sign that is approximately two feet by three feet with the words "45 miles per hour" printed on it, which defendant would have passed. Defendant testified that he was aware of the speed limit, but denied speeding at a rate of 60 mph.

Noting that the officer was "a trained observer regarding the speed of vehicles," the Justice Court found his testimony to be "wholly credible." On appeal, defendant has not presented a sufficient reason why this court should not give deference to the Justice Court's credibility determination. Consequently, the record demonstrates that the People proved that defendant had passed a clearly visible sign stating that the speed limit in the area he was driving was 45 mph and that defendant knew that was the speed limit. The officer who issued the ticket was qualified to make an independent visual estimation of speed of a moving vehicle and determined that defendant was speeding approximately 15 mph above the posted speed limit. Furthermore, the officer's use of his patrol vehicle's speedometer to confirm his estimate was sufficient to establish that defendant was driving 60 mph (see Heyser, 2 NY2d at 393; Wahl, 75 Misc 3d at 44; People v Acevedo-Contreras, 74 Misc 3d 138[A], 2022 NY Slip Op 50308[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). Finally, the officer testified that he did not direct defendant to exceed the speed limit. In view of the foregoing, the People established that defendant failed to obey the instructions of the speed limit sign and, thus, defendant's conviction for violating Vehicle and Traffic Law § 1110 (a) was not against the weight of the evidence (see generally People v Romero, 7 NY3d 633, 643-646 [2006]; Wahl, 75 Misc 3d at 44; Acevedo-Contreras, 2022 NY Slip Op 50308[U]).

Although a criminal defendant is guaranteed the right to confront all adverse witnesses through cross-examination (see Delaware v Van Arsdall, 475 US 673 [1986]; Davis v Alaska, 415 US 308, 315 [1974]; People v Hudy, 73 NY2d 40 [1988]), that right is not unlimited (see People v Stanard, 42 NY2d 74, 83 [1977]), and a trial court has broad discretion to limit the manner and extent of cross-examination (see People v Schwartzman, 24 NY2d 241, 244 [1969]; People v Almeida, 159 AD2d 508 [1990]). The record demonstrates that, despite defendant's contention to the contrary, the Justice Court hardly limited the officer's cross-examination, and the few times it sustained the People's objections, the questions asked by defendant were either beyond the scope of direct examination (see People v Gilchrist, 98 AD3d 1232 [2012]; People v DiBenedetto, 84 Misc 3d 134[A], 2024 NY Slip Op 51805[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]) or not relevant to the People's prima facie case (see generally Vehicle and Traffic Law § 1110 [a]).

Defendant's remaining contentions are without merit.

Accordingly, the judgment of conviction is affirmed.

GARGUILO, P.J., DRISCOLL and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 29, 2025