People v Ferri (Robert)

[*1] People v Ferri (Robert) 2005 NY Slip Op 52135(U) [10 Misc 3d 136(A)] Decided on December 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2004-1526 OR CR

The People of the State of New York, Respondent,

against

Robert Ferri, Appellant.

Appeal from a judgment of the Justice Court of the Town of Tuxedo (Loretta K. Davis, J.), dated October 1, 2004. The judgment convicted defendant, after a nonjury trial, of speeding.

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

Defendant was convicted of speeding in violation of Vehicle and Traffic Law
§ 1180 (b). At trial, the officer failed to present sufficient evidence as to the accuracy of the radar unit, but the court nevertheless convicted defendant due to, inter alia, his failure to deny that he was speeding. To the extent the court based its finding of guilt upon defendant's failure to testify, the court improperly shifted the burden of proof and committed reversible error (see CPL 260.30 [6]; People v Crimmins, 36 NY2d 230 [1975]).

We are also of the opinion that the simplified traffic information should be dismissed since, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), it was legally insufficient to establish defendant's guilt beyond a reasonable doubt. More specifically, the officer did not establish sufficient expertise in estimating the speed of moving vehicles to satisfy the People's burden (cf. People v Heyser, 2 NY2d 390 [1957]).
Decision Date: December 19, 2005