People v Bey (Ka-Seem)

People v Bey 2008 NY Slip Op 28518 [22 Misc 3d 62] Accepted for Miscellaneous Reports Publication AT2 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 18, 2009

[*1] The People of the State of New York, Respondent,
v
Ka-Seem Bey, Appellant.

Supreme Court, Appellate Term, Second Department, December 19, 2008

APPEARANCES OF COUNSEL

Carol Kahn, New York City, for appellant. Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

{**22 Misc 3d at 62} OPINION OF THE COURT

Memorandum.

{**22 Misc 3d at 63}Judgment of conviction modified on the law by vacating so much of the sentence as imposed a mandatory surcharge fee upon defendant; as so modified, affirmed.

After a nonjury trial, defendant was convicted of riding a bicycle on a sidewalk where there was no sign posted permitting same (Administrative Code of City of NY § 19-176 [b]; see New York City Traffic Rules and Regulations [34 RCNY] § 4-07 [c] [3] [i]).

Defendant's contention that his constitutional right to a speedy trial was violated (see CPL 30.20) was not preserved for appellate review since it was not made in writing and upon reasonable notice to the People (CPL 170.45, 210.45 [1]; see People v Lawrence, 64 NY2d 200 [1984]; People v Jordan, 62 NY2d 825 [1984]). In any event, were we to apply the factors set forth in People v Taranovich (37 NY2d 442 [1975]), we would conclude that the delay in the instant matter was not violative of defendant's constitutional right to a speedy trial.

Defendant's contention that the evidence adduced at trial was legally insufficient to prove his guilt is similarly unpreserved for appellate review (see People v Hines, 97 NY2d 56 [2001]). In any event, viewing the evidence in a light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Romero, 7 NY3d 633, 644 [2006]).

Defendant's contention that the statute which he was convicted of violating was unconstitutional and void for vagueness was also not preserved for appellate review (People v [*2]Graham, 93 NY2d 934 [1999]; People v Iannelli, 69 NY2d 684 [1986]; People v Adams, 50 AD3d 433 [2008]).

However, the court erred in imposing a mandatory surcharge fee of $95 upon defendant. A violation of Administrative Code of the City of New York § 19-176 (b) is a traffic infraction, as that subdivision merely provides that a person who violates it shall be fined not more than one hundred dollars. Vehicle and Traffic Law § 1809, which governs mandatory surcharges for traffic infractions, specifically excludes traffic infractions involving bicyclists. Thus, the court had no{**22 Misc 3d at 64} authority to impose a mandatory surcharge upon defendant, and the judgment is modified by vacating so much of the sentence as imposed same.

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.