People v Tsys (Vasily)
Annotate this CaseDecided on December 15, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2009-1033 D CR.
The People of the State of New York, Respondent,
against
Vasily A. Tsys, Appellant.
Appeal by defendant from judgments of the Justice Court of the Town of Rhinebeck,
Dutchess County (John B. Kane, Jr., J.), rendered January 15, 2009. The judgments convicted
defendant, after a nonjury trial, of passing another vehicle in a no- passing zone and speeding,
and imposed sentences.
ORDERED that the judgments of conviction are affirmed.
The People charged defendant, in simplified traffic informations, with passing another
vehicle in a no-passing zone (Vehicle and Traffic Law § 1126 [a]) and speeding (Vehicle
and Traffic Law § 1180 [b]). After a nonjury trial, the Justice Court convicted
defendant of both offenses. Defendant appeals, challenging, among other matters, the facial
sufficiency of the accusatory instruments, the sufficiency of the trial proof to establish his guilt,
and the propriety of the fines imposed. For the reasons that follow, we affirm the judgments of
conviction.
We find that the simplified traffic informations on their face were legally sufficient since they conformed to the requirements prescribed by the Commissioner of Motor Vehicles (see CPL 100.25, 100.40; People v Key, 45 NY2d 111 [1978]). Furthermore, the supporting depositions provided "reasonable cause to believe that the defendant committed the . . . offenses charged" (CPL 100.25 [2]) and "serve[d] the fundamental purposes of providing the accused notice sufficient to prepare a defense' and in a form sufficiently detailed' to prevent a subsequent retrial for the same offense[s]" (People v Prevete, 10 Misc 3d 78, 79-80 [App Term, 9th & 10th Jud Dists 2005], quoting People v Casey, 95 NY2d 354, 360 [2000]). Consequently, defendant's challenges to the facial sufficiency of the accusatory instruments lack merit. [*2]
As for the trial proof, viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), the evidence was legally sufficient to sustain the convictions. The arresting officer, a state trooper, testified that he is trained to estimate the speed of a moving vehicle to within five miles per hour of its actual speed and that he observed defendant traveling at 80 miles per hour in a 55 miles per hour speed zone as defendant was passing another vehicle while driving to the left of roadway markings that prohibit such a maneuver. Testimony by an officer qualified to estimate vehicle speeds to such a degree of accuracy is sufficient to support a speeding conviction where, as here, "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]; see People v Poltorak, 28 Misc 3d 129[A], 2010 NY Slip Op 51222[U] [App Term, 9th & 10th Jud Dists 2010] [collecting cases]; People v Gravagna, 26 Misc 3d 138[A], 2010 NY Slip Op 50225[U] [App Term, 9th & 10th Jud Dists 2010]). Moreover, moments after his visual estimate, the trooper employed a radar device to measure defendant's speed at 78 miles per hour. Certified to instruct others in the use of the device, the trooper testified in detail as to the operation and calibration of the device and to his long experience employing same. This testimony established that the radar device was properly tested, and evidence of a reading from such a device suffices to prove the offense beyond a reasonable doubt (see People v Dusing, 5 NY2d 126, 128 [1959]). Moreover, even if the proof of calibration was inadequate, a reading from an untested radar unit, coupled with a qualified officer's visual estimate, suffices to prove the offense (see People v Magri, 3 NY2d 562, 567 [1958]; People v Ramaker, 9 Misc 3d 131[A], 2005 NY Slip Op 51592[U] [App Term, 9th & 10th Jud Dists 2005]). In any event, defendant conceded at trial that the relevant speed limit was 55 miles per hour and that he exceeded that limit, if by only 5 miles per hour, at the time and location alleged. These admissions established that he committed the offense.
As to the remaining charge, while defendant conceded he was passing another vehicle while he was driving in the opposing lane of traffic as he approached the trooper's position, he claimed that he did so in a permitted passing zone and that his passing maneuver had been completed before the start of the roadway markings prohibiting same. Viewed in the light most favorable to the People (Contes, 60 NY2d at 621), the trooper's testimony, to the effect that defendant was driving to the left of roadway markings prohibiting same, sufficed to prove the offense. We note that there is no element of intent in either statute, and no proof in relation to such a state of mind was required (Penal Law § 15.10).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity at trial to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888 [2006]). It was within the provenance of the Justice Court "to weigh the relative strength of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987]), and, viewed as a whole, the trooper's testimony was coherent, plausible as to facts, unmarred by material contradictions, and contradicted only by defendant's own view of the facts. Thus, the record supports the Justice Court's determinations in relation to disputed facts, and we are satisfied that the verdicts were not against the weight of the evidence (People v Romero, 7 [*3]NY3d 633 [2006]).
As to sentencing, defendant does not argue that the fines were illegal, only that they were unduly harsh and excessive. Under the facts presented, we find that defendant's contention lacks merit.
Accordingly, the judgments of conviction are affirmed.
Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: December 15, 2010
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