People v Stemples
Annotate this CaseDecided on August 22, 2012
County Court, St. Lawrence County
The People of the State of New York, Plaintiff , Respondent
against
Richard Stemples, Defendant - Appellant
20370
Appellant Richard Stemples, by D.J. and J.A. Cirando,
John A. Cirando, Esq., of counsel
The People of the State of New York, by Hon. Nicole M. Duvé, District Attorney,
Jonathan L. Becker, Esq., of counsel
Jerome J. Richards, J.
Defendant appeals from the judgment of conviction after a bench trial on February 23, 2010 in Piercefield Town Court (Young, J.) of failing to drive entirely within a single lane, contrary to Vehicle & Traffic Law §1128(a). The court imposed a fine of $85.00.
On June 4, 2010 defendant was the driver of the second of two Canton School District buses taking first grade students on a field trip to the Wild Center in Tupper Lake, New York. At some point on State Route 3 in the Town of Piercefield in this county the bus driven by Stemples veered off the highway to the right of the lane of travel, went down an embankment, then up a slight hill, coming to rest against a tree stump. Several parents of children on the buses were following in an informal convoy on the trip. One parent, Alyssa Cloce, saw the bus drift over the highway center line by a full tire length or width. Another parent, Kayla Rayburn, also saw Stemples cross over the yellow center line and the white fog line to the right of the highway. Alone among the eyewitnesses, Rayburn said that this happened multiple times.
Rayburn testified that at the scene Stemples told Rayburn that he had hit a bump and lost control of the bus. During his interview with investigating Troopers Timothy Durkee and George Studlack, Stemples said that he felt the bus veer to the right, then Stemples said he tried to correct for this by steering to the left, but was unable to do so, and then found a safe position to put the bus, and drove off the road to what he thought was the safest spot. In a June 15, 2010 affidavit defendant said that he tried to steer left, was unsuccessful, and the bus entered the paved shoulder of the highway. In this explanation Stemples said that when the bus dropped off the highway shoulder the wheels began to wobble. Later in this same affidavit Stemples said that he did not attempt to brake when the accident happened. He estimated that it was going about 40 m.p.h. at the time. At trial, Stemples testified that there was movement in the steering wheel; at some point after that the bus went over the double yellow line but he was able to correct it; then it went over the white fog line; then Stemples said he could not correct the steering at that point. [*2]On cross-examination he changed this to say that he did correct the steering again. Stemples further testified that he looked for a safe place to take the bus off the road, could not find one and that the bus suddenly left the road. He stated that he did everything he could to prevent the accident. Trooper Durkee observed no skid marks on the road, but acknowledged on cross-examination that the use of brakes would not always produce a skid mark on the road.
David Baker is a state bus inspector. He testified that he happened to be at the Canton School on unrelated business on the day of the accident. After the bus was towed back to the school garage Baker examined the bus, including its steering and tires, and found no mechanical defects other than the tire puncture caused by the bus bumper bending back into the tire when the vehicle left the road.
Although defendant was initially charged with felony and misdemeanor drug impairment charges, it became clear that the medications which defendant had used were not controlled substances under Public Health Law §3306, and therefore would not support a charge of driving while ability impaired. The later toxicology report found the presence of a prescription medication Effexor, also known as Venlafaxine, whose side effects can include drowsiness, dizziness, weakness, tiredness and blurred vision. (see A.D.A. Palmer's letter to the court, record, at 20-21). It should be noted that there is no trial evidence establishing that defendant had any of these potential side effects on the accident date, or that any of them was or was not a contributing factor to the accident. Defendant neither admitted nor testified to his use of this medication, despite the fact that he mentioned other prescription medications which he used on a long-standing basis. The prosecution moved to dismiss the charges related to driving impaired by drugs because none of the drugs was a controlled substance.
Fortunately no one was ejected from the bus during the accident, and the bus did not tip over. Witnesses testified that no one was seriously hurt in the mishap. As noted by Ms. Palmer's letter, and by the closing prosecution comments at trial, the People have always held the view that defendant crashed the school bus because his ability to operate the bus was impaired by his use of prescription drugs.
This court heard oral argument on the appeal on August 6, 2012, and reserved decision at that time. Appellant raises four arguments on the appeal. First, appellant argues that the trial evidence was not legally sufficient to support the guilty verdict at the bench trial, and that the issue was preserved for appellate consideration by appropriate motions at the close of the People's case and again at the close of the evidence. Appellate defense counsel notes that VTL §1128(a) provides that, "Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules...shall apply: (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." [appellant's brief, 19]. Appellant argues that the legislative purpose behind VTL sections 1120 through 1131 inclusive is to ensure the safety of drivers when overtaking and passing other vehicles, and to ensure that, with limited exceptions, driving is done on the right side of the road. Appellant reasons that proof of the bus having gone off the road does not fit the fact patterns regulated by the statute. Rather, appellant argues, there was an emergency situation requiring the driver to attempt to control the bus which the driver said was suddenly and unexpectedly unresponsive to his attempts to steer it. Moreover, appellant argues that the People offered no direct proof at trial that [*3]defendant operated the bus unsafely as it was going off the road. Appellant urges the conclusion that the statute is concerned with acts such as unsafe lane change, straddling two lanes of traffic, or driving for some distance along the highway shoulder; none of these acts was part of the fact pattern in the present case.
The People respond to appellant's first argument by asserting that the argument was not properly preserved for appellate review and that the evidence was legally sufficient.
Appellant's second argument is that the conviction was contrary to the weight of the evidence. In this type of review the court must first decide whether a different verdict would not have been unreasonable, and if it so finds, the court must then evaluate the evidence neutrally, considering the weight of the evidence and any rational inferences flowing from that evidence. As part of this review the court is expected to give great deference to the credibility determinations of the trial court because that court was best able to see and hear the witnesses. On this issue appellant argues that his accounts to Durkee and Studlack remained consistent, and that Baker's opinion that there were no mechanical defects in the bus was not entitled to great weight because he did not dismantle the steering column before stating that it was in working order. The People argue that the only inconsistencies in the evidence are within the different versions of events given by defendant himself: to Rayburn, to Durkee and Studlack, in his later affidavit, and in his trial testimony.
Appellant's third argument is that appellant was denied due process of law because of prejudicial misconduct by the prosecutor arising from his claimed mis-characterization of the trial evidence during summation. Defense counsel noted objections to these mis-characterizations at the time, but received no explicit ruling from the trial court (transcript, 109-110). As defense counsel notes, the potential for prejudice to defendant from such mis-characterizations is enhanced when the evidence is less than overwhelming. The People aver that this was a bench trial, and that even if the trial prosecutor did make unwarranted and unsupported arguments, they were not so extreme as to cause prejudice requiring a reversal of the conviction. Essentially the People argue that the trial court was not persuaded by the People's arguments, and made its findings based on the court's own assessment of the evidence, as was required. After reviewing the trial transcript the court agrees with the People's argument, and finds that while some of the prosecutor's summation comments were unsupported by the trial evidence, the summation as a whole did not cause prejudice to defendant.
Appellant's fourth argument is that defendant was denied the effective assistance of trial defense counsel who allegedly failed him in not having made a speedy trial dismissal motion. Appellate defense counsel asserts that this was a winning argument which would have required dismissal of the case. The People respond, correctly, that there is no statutory speedy trial rule for traffic infractions, and that the argument is therefore wholly without merit. In support of this argument the People cite People v. Taylor, 189 Misc 2d 313 [2d Dept 2001]. Although Taylor does state that principle of law, in that case it is mere dicta because the dismissal motion was based on a constitutional speedy trial argument, which does apply to a traffic infraction. However, other cases have established that there is no statutory right to a speedy trial of a traffic infraction, and have cited Taylor with approval. People v. Popat, 15 Misc 3d 1136A, 841 NYS2d 822 [Crim Ct Kings County 2007], People v. Kreinen, 2002 NY Misc LEXIS 1059, 2002 NY Slip Op 40359U [Sup Ct App Term 9th & 10th Districts 2002]. Since there was no statutory right [*4]to a speedy trial of the traffic infraction charge, there was no denial of effective assistance of counsel in not moving to dismiss on that basis.
"A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational [trier of fact] could have found the elements of the [traffic infraction] proved beyond a reasonable doubt." People v. Danielson, 9 NY3d 342, 348-349 [2007], cited in People v. Bailey, 13 NY3d 67 [2009].
In order to prove a legally sufficient case against this defendant the People were required to establish beyond a reasonable doubt that defendant moved out of the established right-hand lane of travel without first ascertaining that such movement could be made with safety. VTL §1128(a). Although the People's brief (pages 8-9) actually states the reverse of this requirement, that defendant did not leave the lane without first establishing that it was safe to do so, it is clear from the other portions of the same argument that this was a mere typographical error [emphasis added].
While there may be other provisions of the Vehicle and Traffic Law [see, for example, §§509-k or 509-l or 1128(d)], that might be relevant to this fact pattern, those sections were not charged, and perhaps there were no available facts at the time to support such charges. The question is whether the facts at trial established the failure to stay in the lane unless it could first be established that a lane change could be accomplished safely.
Several reported cases have discussed the sufficiency of evidence that defendant crossed
the white fog' line on the right hand side of the road. In People v. Davis, 58 AD3d 896 [3d Dept 2009] the court held that "we decline to hold that fog line encroachment can never be the basis for a valid traffic stop as a matter of law. However, in this case, we are mindful that [officer] Fluty only testified as to brief contacts with the fog line prior to the stop. He did not indicate that, for example, defendant was weaving, driving erratically or even that he drove onto the shoulder of the road (see People v. Parris, 26 AD3d 393 [2d Dept 2006], lv den 6 NY3d 851 [2006]). Significantly, the factual findings of the suppression court are to be accorded great deference and should not be disturbed unless they are clearly erroneous [citations omitted]. Accordingly, given the record herein, we cannot conclude that the decision granting suppression was in error and, therefore, decline to disturb it." 58 AD3d, 896, 898. It is important to keep in mind that in Davis the police officer saw defendant's vehicle cross the fog line under circumstances that are clearly different from those in the present case. Also, the issue in Davis was whether or not the suppression court had a valid basis for suppressing evidence due to lack of probable cause for the stop. Here the issue is the legal sufficiency of evidence for conviction. Davis clearly implies that more frequent crossing of the white line, or even traveling on the shoulder, would tend more strongly to support an arrest. Those factors are present in this case.
Similarly, in People v. Parris, 26 AD3d 393 [2d Dept 2006], app den 6 NY3d 851 [2006] the appellate division upheld a suppression court's finding that a state trooper lawfully stopped the defendant's vehicle after observing it cross onto the shoulder of the highway twice over a short distance, citing VTL §§1128(a) and 1131.
While this court is inclined to agree with defense counsel that VTL §1128(a) was not intended to apply to the kind of situation present here, the facts established beyond a reasonable doubt at trial, together with the reasonable inferences flowing from the testimony, do establish a [*5]violation of the statute by legally sufficient evidence.
Nor was the verdict against the weight of the evidence. The defense has not succeeded in challenging the People's evidence from Cloce, Rayburn, Durkee, Studlack or Baker, other than to suggest that Baker's evaluation of the bus steering was not sufficiently thorough to support his conclusion that the bus suffered no mechanical defects. The defense probed that issue at trial, and the court found Baker's conclusions well-supported and credible. Nothing in the record supports a view that this was clearly erroneous. On the other hand, defendant gave differing explanations of the accident to different people at different times, as previously discussed. Portions of defendant's statements are mutually inconsistent. For example, his statement to Rayburn that he hit a bump appears in no other statement. Similarly, he alternated as to the number of times that the bus veered one way or the other and whether or not he had any control over its speed or direction. For him to have said, as he did in different statements, that the bus was going approximately 40 m.p. h. at the time of the accident and that he did not try to use the brakes before going off the road certainly raises concerns about the consistency and credibility of his statements and testimony. The trial record supports the conclusion that the trial judge carefully weighed all of the testimony, and nothing in the record suggests that this was error.
The judgment of the Town Court of the Town of Piercefield is therefore affirmed. So ordered.
ENTER.
Dated: August 22, 2012
____________________________________
JEROME J. RICHARDS
Judge of County Court
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