People v D'Agostino (Rocco)

People v D'Agostino 2007 NY Slip Op 27533 [18 Misc 3d 92] Accepted for Miscellaneous Reports Publication AT2 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 19, 2008

[*1] The People of the State of New York, Respondent,
v
Rocco F. D'Agostino, Appellant.

Supreme Court, Appellate Term, Second Department, December 21, 2007

APPEARANCES OF COUNSEL

Rocco F. D'Agostino, appellant pro se.

{**18 Misc 3d at 93} OPINION OF THE COURT

Memorandum.

Judgment of conviction reversed on the law, simplified traffic information dismissed and fine remitted.

In People v Quarantillo (61 NY2d 992, 993-994 [1984]), the Court of Appeals observed: "The order of County Court, Niagara County, should be reversed and the simplified traffic information dismissed. "Defendant was convicted of overtaking and passing a school bus (Vehicle and Traffic Law, § 1174, subd [a]), upon proof that he failed to stop behind a school bus which had stopped and was discharging passengers. Although there was sufficient evidence from which the trier of fact could conclude that a red visual signal was in operation at the time defendant passed the bus, the record is entirely devoid of proof that the school bus was in compliance with subdivision 20 of section 375 of the Vehicle and Traffic Law, as is specifically required by the statute pursuant to which defendant was convicted. Particularly, and as [*2]pointed out by defendant at the close of the People's case, there was no proof that the vehicle bore the required signs, identifying it as a school bus, painted on the proper color background. Accordingly, the People have failed in their burden of proving each and every element of the offense charged (CPL 70.20; People v Brown, 25 NY2d 374, 377)."

Similarly, in the case at bar, "[a]lthough there was sufficient evidence from which the trier of fact could conclude that a red visual signal was in operation at the time defendant passed the bus, the record is entirely devoid of proof that the school bus was in compliance with subdivision 20 of section 375 of the Vehicle and Traffic Law, as is specifically required by the statute pursuant to which defendant was convicted" (People v Quarantillo, 61 NY2d at 993-994).

The only evidence of the size of the bus was from defendant, who testified that it could transport less than six children. From the officer's questions on cross-examining defendant, one might speculate that the officer believed it was a larger school bus, but{**18 Misc 3d at 94} he never testified to this effect. Similarly, only defendant offered clear statements as to the number of "SCHOOL BUS" signs displayed on the bus. He testified that there was only one such sign displayed and that the size of its lettering and its background (white) failed to conform to the requirements of Vehicle and Traffic Law § 375 (20). Under the circumstances, therefore, the judgment of conviction must be reversed.

Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.