People v Smith (William)

[*1] People v Smith (William) 2006 NY Slip Op 51862(U) [13 Misc 3d 131(A)] Decided on September 25, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1443 D CR.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

William P. Smith, Appellant.

Appeal by defendant from a judgment of the Justice Court of the Town of Hyde Park, Dutchess County (John M. Kennedy, J.), rendered December 28, 2004. The judgment convicted defendant, after a nonjury trial, of speeding.

Judgment of conviction affirmed.

The uncorroborated opinion testimony of a qualified police officer as to his or her visual estimate that defendant's vehicle's rate of speed exceeded the speed limit by 20 miles an hour is legally sufficient to support a conviction for violating section 1180 of the Vehicle and Traffic Law since "the variance between the estimated speed and maximum permissible speed is sufficiently wide so that [the factfinder] may be certain beyond a reasonable doubt that the defendant exceeded the permissible limit" (People v Olsen, 22 NY2d 230, 232 [1968]; People v Heyser, 2 NY2d 390, 394 [1957]; People v Ramaker, 9 Misc 3d 131[A], 2005 NY Slip Op 51592[U] [App Term, 9th & 10th Jud Dists]; People v Crawford, 5 Misc 3d 137[A], 2004 NY Slip Op 51558[U] [App Term, 9th & 10th Jud Dists]). Further, the opinion evidence was supported by proof of a nearly identical reading by a laser device, the calibration and accuracy of which was established at trial (e.g. Matter of Clarke v Martinez, 14 AD3d 612, 613 [2005]; People v Heting Chu, 2002 NY Slip Op 40439[U] [App Term, 9th & 10th Jud Dists]). Defendant's claim that the laser device might have detected the speed of a different vehicle "is [*2]speculation and the court was entitled to credit the officer's testimony to the contrary" (People v Earley, 7 Misc 3d 139[A], 2005 NY Slip Op 50873[U] [App Term, 9th & 10th Jud Dists]).

Viewed in the light most favorable to the People (People v Contes, 60 NY2d 620 [1983]), the evidence was legally sufficient to support the conviction. It cannot be said that the testimony of the prosecuting officer was so marred by material discrepancies (People v Pazmino, 179 AD2d 385, 386 [1992]) or inherent improbabilities as to be "incredible as a matter of law" (People v Gruttola, 43 NY2d 116, 122 [1977]; see also People v Garafolo, 44 AD2d 86, 88 [1974]). In the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (CPL 470.15 [5]).

Defendant's argument regarding the People's failure to prove that the posted 45 mile per hour speed limit conformed to federally-mandated engineering and use requirements is likewise without merit. Vehicle and Traffic Law § 1110 (c) and (d) creates "a legal presumption that a speed ordinance has been properly enacted when signs and traffic devices in approximate conformity with the Vehicle and Traffic Law have been erected" (People v Bradfute, 49 Misc 2d 1092, 1093 [County Ct, Westchester County 1966]; see People v Kesten, 15 NY2d 857 [1965]). Defendant's proof did not establish, by competent evidence, that the posted speed limit violated those requirements.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: September 25, 2006