People v Russell (Frank)

[*1] People v Russell (Frank) 2005 NY Slip Op 50215(U) Decided on February 22, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-562 N CR

The People of the State of New York, Respondent,

against

Frank S. Russell, Appellant.

Appeal by defendant from a judgment of the Justice Court, Village of Lake Success, Nassau County (H. Boris, J.), rendered on December 10, 2003, following a non-jury trial, convicting him of violating Vehicle and Traffic Law § 1128 (a) and imposing a fine.

Judgment of conviction unanimously reversed on the facts, accusatory instrument dismissed and fine, if paid, remitted.

The evidence adduced at trial does not support defendant's conviction of violating Vehicle and Traffic Law § 1128 (a). All of the testimony indicated that defendant was moving slowly, attempting to pass an accident scene, and there was no testimony to support an inference that his movement to the left of the issuing officer's patrol car at the scene was not safe. While the credibility determinations of a trier of fact are generally entitled to great deference upon appeal (see e.g. People v Garafolo, 44 AD2d 86 [1974]), it must be noted that defendant presented his own testimony and that of two witnesses, that their substantive recollections differed from those of the issuing officer, and that the court below apparently did not make any credibility assessment of the testimony in convicting defendant. [*2]
Decision Date: February 22, 2005