People v Irizarry (Magda)

[*1] People v Irizarry (Magda) 2014 NY Slip Op 50614(U) Decided on March 28, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ
2012-748 W CR.

The People of the State of New York, Respondent,

against

Magda Irizarry, Appellant.

Appeal from "convictions" of the City Court of New Rochelle, Westchester County (Gail B. Rice, J.), entered March 7, 2012, deemed from judgments of the same court rendered March 19, 2012 (see CPL 460.10 [6]). The judgments convicted defendant, after a nonjury trial, of overtaking and passing a school bus and of operating a motor vehicle without a displayed certificate of inspection, respectively.

ORDERED that the judgment convicting defendant of overtaking and passing a school bus is reversed, on the law and as a matter of discretion in the interest of justice, the accusatory instrument charging that offense is dismissed, and the fine therefor, if paid, is remitted; and it is further,

ORDERED that the judgment convicting defendant of operating a motor vehicle without a displayed certificate of inspection is affirmed.

On January 5, 2012, the People charged defendant, in separate simplified traffic informations, with overtaking and passing a school bus (Vehicle and Traffic Law § 1174 [a]) and with operating a motor vehicle without a displayed certificate of inspection (Vehicle and Traffic Law § 306 [b]), respectively. At a March 7, 2012 nonjury trial, the City Court examined the complainant police officer in the absence of an assistant district attorney, and defendant, who appeared pro se, cross-examined the officer and testified in her own defense. In the course of her testimony, she admitted her guilt of the offense of operating a motor vehicle without a displayed certificate of inspection. Following the trial, the City Court convicted defendant of both offenses.

On appeal, defendant argues, among other things, that the proof of the charge of overtaking and passing a school bus was legally insufficient; that the court impermissibly acted as the prosecutor in examining the officer; and that defendant was denied her Fifth Amendment right against self-incrimination when she was allowed to confess to the offense of operating a motor vehicle without a displayed certificate of inspection without being advised that she may invoke that right. The People concede the legal inadequacy of the proof of overtaking and passing a school bus, reject defendant's claim of the court's lack of impartiality, and do not address defendant's remaining claim.

Defendant's claims of error are not preserved for appellate review (CPL 470.05 [2]; see e.g. People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 20 [1995]; People v Hightower, 29 Misc 3d 131[A], 2010 NY Slip Op 51882[U] [App Term, 1st Dept [*2]2010]). Nevertheless, as the People properly concede, the proof of guilt of overtaking and passing a school bus was legally insufficient (People v Quarantillo, 61 NY2d 992 [1984]; People v Robinson, 39 Misc 3d 128[A], 2013 NY Slip Op 50420[U] [App Term, 9th & 10th Jud Dists 2013]; People v D'Agostino, 18 Misc 3d 92, 93-94 [App Term, 9th & 10th Jud Dists 2007]). Under the circumstances, as a matter of discretion in the interest of justice, we reverse the judgment convicting defendant of overtaking and passing a school bus and dismiss the accusatory instrument.

We have considered defendant's contentions with respect to the judgment convicting her of operating a motor vehicle without a displayed certificate and find them to be without merit (see People v Vivenzio, 62 NY2d 775, 776 [1984]; People v Letterio, 16 NY2d 307, 312 [1965]; People v DeLeyden, 10 NY2d 293, 294 [1961]; People v Wright, 19 Misc 3d 140[A], 2008 NY Slip Op 50904[U] [App Term, 9th & 10th Jud Dists 2008]; People v Pappas, 19 Misc 3d 140[A], 2008 NY Slip Op 50903[U] [App Term, 9th & 10th Jud Dists 2008]; People v Dudas, 1 Misc 3d 132[A], 2003 NY Slip Op 51623[U] [App Term, 9th & 10th Jud Dists 2003]; cf. People v Berger, 16 Misc 3d 133[A], 2007 NY Slip Op 51498[U] [App Term, 9th & 10th Jud Dists 2007]).

Accordingly, the judgment convicting defendant of overtaking and passing a school bus is reversed, the accusatory instrument charging that offense is dismissed, and the fine therefor, if paid, is remitted. The judgment convicting defendant of operating a motor vehicle without a displayed certificate of inspection is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: March 28, 2014