People v Silver (Samuel)

[*1] People v Silver (Samuel) 2014 NY Slip Op 50711(U) Decided on April 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 18, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ
2012-2224 N CR.

The People of the State of New York, Respondent,

against

Samuel S. Silver, Appellant.

Appeal from a judgment of the Justice Court of the Village of Great Neck, Nassau County (Jon R. Mostel, J.), rendered September 19, 2012. The judgment convicted defendant, after a nonjury trial, of overtaking and passing a school bus.

ORDERED that the judgment of conviction is reversed, on the law, the fine, if paid, is remitted, and the matter is remitted to the Justice Court for a new trial before a different judge.

Defendant was charged with overtaking and passing a school bus (Vehicle and Traffic Law § 1174 [a]). Following a nonjury trial, at which defendant did not testify, the Justice Court found defendant guilty as charged. The court's written decision indicates that it based its determination upon defendant's failure to establish, among other things, that he did not overtake and pass a stopped school bus. The court did not make any finding with respect to the evidence adduced by the People at trial. Consequently, the Justice Court improperly shifted the burden of proof to defendant, which error requires a reversal of the judgment of conviction (see CPL 260.30 [6]; People v Crimmins, 36 NY2d 230 [1975]; People v Ferri, 10 Misc 3d 136[A], 2005 NY Slip Op 52135[U] [App Term, 9th & 10th Jud Dists 2005]).

Accordingly, the judgment of conviction is reversed and the matter is remitted to the Justice Court for a new trial before a different judge.

Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: April 18, 2014