People v Phillips (Veronica)
Annotate this CaseDecided on January 8, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2014-92 N CR
The People of the State of New York, Respondent,
against
Veronica Phillips, Appellant.
Appeal from a judgment of the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency (Lawrence M. Schaffer, J.H.O.), rendered December 12, 2013. The judgment, after a nonjury trial, convicted defendant of using a mobile telephone while operating a motor vehicle.
ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency, for a new trial.
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 December 12, 2013, a police officer testified that, prior to pulling over defendant's vehicle, he had observed defendant holding her cell phone in her hand, next to her face, while her vehicle was in motion. Defendant, who appeared pro se, testified that she was not using her cell phone while she was driving and that her phone was located by the vehicle's glove compartment. Defendant also indicated to the court that she had exculpatory evidence to present; however, the court did not respond directly to defendant, or even acknowledge her request. Instead, without allowing defendant to rest her case, the judicial hearing officer rendered his verdict, finding her guilty as charged. Defendant immediately protested, stating that she did not understand why a verdict had been rendered when she had informed the court that she had exculpatory evidence to present. On appeal, defendant contends that she was deprived of her fundamental constitutional right to a fair trial since she was denied the opportunity to introduce evidence in support of her defense, despite notifying the court that she had evidence to present. In their respondent's brief, the People suggest that this appeal cannot be determined without a remittal to the trial court for an identification of defendant's proposed evidence.
Vehicle and Traffic Law § 1225-c (2) (a) provides that "no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion . . . ." For purposes of the statute, "using" a mobile telephone means holding a mobile telephone to, or in the immediate proximity of, the user's ear (Vehicle and Traffic Law § 1225-c [1] [c] [i]), and "engage in a call" means "talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone" (Vehicle and Traffic Law § 1225-c [1] [f]). Moreover, "[a]n operator of any motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or [*2]her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section . . . . [and] [t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call" (Vehicle and Traffic Law § 1225-c [2] [b]).
The officer's testimony gave rise to a presumption that defendant had been engaged in a call on a hand-held mobile telephone while operating her motor vehicle. Thus, pursuant to Vehicle and Traffic Law § 1225-c (2) (b), the burden was on defendant to rebut this presumption by demonstrating that she had not been engaged in a call. Defendant correctly argues that she was denied the opportunity to fully present her defense. "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations" (Chambers v Mississippi, 410 US 284, 294 [1973]). While a trial court is afforded wide latitude to exclude certain evidence, that authority is "circumscribed by . . . the defendant's constitutional right to present a defense" (People v Carroll, 95 NY2d 375, 385 [2000]; see also People v Cervera, 40 Misc 3d 89 [App Term, 9th & 10th Jud Dists 2013]). Here, the District Court did not allow defendant to present evidence after she had clearly indicated her desire to do so. In fact, rather than rule on whether it would permit the introduction of such evidence, the court simply ignored defendant's request and rendered its verdict without allowing defendant to rest her case. As a result, although it is unclear just what that exculpatory evidence may have been, the court improperly deprived defendant of her constitutional right to present evidence in her defense (see People v Gilliam, 37 NY2d 722 [1975]; People v Lyons, 112 AD3d 849 [2013]), which may have rebutted the presumption that she was engaged in a call on her hand-held cell phone while her vehicle was in motion.
Accordingly, the judgment of conviction is reversed and the matter is remitted to the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency, for a new trial.
Marano, P.J., Garguilo and Connolly, JJ., concur.
Decision Date: January 08, 2016
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