People v Rosenbaum (Eric)

[*1] People v Rosenbaum (Eric) 2007 NY Slip Op 50937(U) [15 Misc 3d 138(A)] Decided on May 7, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LIPPMAN and OWEN, JJ
2005-1727 D CR.

The People of the State of New York, Respondent,

against

Eric Rosenbaum, Appellant.

Appeal from a judgment of the Justice Court of the Town of La Grange, Dutchess County (Joseph L. Spiegel, J.), rendered October 11, 2005. The judgment convicted defendant, after a nonjury trial, of speeding.

Judgment of conviction reversed on the law, fine, if paid, remitted and matter remanded to the court below for a new trial.

Following a trial at which stenographic minutes were not taken, defendant was convicted of speeding in violation of section 1180 (b) of the Vehicle and Traffic Law. In so ruling, the court stated that it found defendant guilty of speeding, traveling 75 miles per hour in a 55 mile an hour zone, on the Taconic State Parkway in the Town of La Grange, on December 23, 2003, at or about 10:39 A.M.

In an affidavit of errors, defendant's attorney alleged that defendant was denied his right to a fair trial and to due process, including a denial of defendant's 6th and14th Amendment right to cross-examine the People's witness. Since the Town Justice who presided over the trial retired, the current Town Justice prepared the return in which he simply stated that "[t]he decision stands as an answer to affidavit of errors."

By order dated May 26, 2006, this court granted defendant's motion to compel the Justice Court to file and serve a return to the affidavit of errors. As a result of the Justice Court's failure to comply with the May 26, 2006 order, this court, by order dated October 12, 2006, deemed the allegations in the affidavit of errors admitted for purposes of the appeal (see People v Feldes, 73 NY2d 661 [1989]).

In view of the foregoing, and since, upon this record, the admitted trial court errors cannot be deemed harmless, the judgment of conviction is reversed and the matter remanded to the court below for a new trial (see People v Feldes, 73 NY2d at 664; cf. People v Didio, 14 [*2]Misc 3d 128[A], 2006 NY Slip Op 52496[U] [App Term, 9th & 10th Jud Dists]).

Rudolph, P.J., Lippman and Owen, JJ., concur.
Decision Date: May 7, 2007