People v Solanet (Olivier)

[*1] People v Solanet (Olivier) 2014 NY Slip Op 51253(U) Decided on August 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2012-2138 D CR

The People of the State of New York, Respondent,

against

Olivier R. Solanet, Appellant.

Appeals from a judgment and an amended decision of the Justice Court of the Town of East Fishkill, Dutchess County (Frederick D. Romig, J.), rendered April 26, 2012 and dated May 11, 2012, respectively. The judgment, after a nonjury trial, convicted defendant of speeding.

ORDERED that the appeal from the amended decision dated May 11, 2012 is dismissed, as no appeal lies from a decision (see People v Scott, 93 AD3d 1239 [2012]; see also UJCA 1702; Greenfield v Tassinari, 8 AD3d 529 [2004]); and it is further,

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial, defendant was convicted of speeding (Vehicle and Traffic Law § 1180 [b]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we are of the opinion that the proof was legally sufficient to establish defendant's guilt of speeding beyond a reasonable doubt. Laser readings are generally admissible and may independently be sufficient to prove a speeding violation if there is reasonable proof of the device's accuracy (see People v Dusing, 5 NY2d 126, 128 [1959]; People v Les, 36 Misc 3d 138[A], 2012 NY Slip Op 51439[U] [App Term, 9th & 10th Jud Dists 2012]; People v Smith, 13 Misc 3d 131[A], 2006 NY Slip Op 51862[U] [App Term, 9th & 10th Jud Dists 2006]). Such a device's accuracy may be established by proof that a police officer, who is a qualified operator, conducted tests indicating that the laser was functioning properly at the time of the incident (see Matter of Graf v Foschio, 102 AD2d 891 [1984]; People v Goess, 34 Misc 3d 152[A], 2012 NY Slip Op 50303[U] [App Term, 9th & 10th Jud Dists 2012]; People v Susana, 29 Misc 3d 144[A], 2010 NY Slip Op 52218[U] [App Term, 9th & 10th Jud Dists 2010]).

Here, the state trooper's laser operation certification card, issued by the New York State Police, was entered into evidence. The trooper testified that he had conducted the appropriate calibration tests on the device. Thus, the trooper's testimony that, as a qualified operator, he had used a properly calibrated laser device to measure defendant's speed at 77 miles per hour in a posted 55 mile per hour zone sufficed independently to prove a violation of Vehicle and Traffic Law § 1180 (b) (see People v Dusing, 5 NY2d at 128; People v Goess, 34 Misc 3d 152[A], 2012 NY Slip Op 50303[U]; People v Susana, 29 Misc 3d 144[A], 2010 NY Slip Op 52218[U]).

Moreover, even if the proof of the calibration of the laser was inadequate, a reading from an untested device, coupled with a qualified officer's visual estimate, suffices to prove the offense, particularly if the visual estimate sufficiently corroborated the device's measurement to [*2]render any perceived deficiency in the evidence regarding the device of no consequence (see People v Knight, 72 NY2d 481, 488 [1988]; People v Grennon, 36 Misc 3d 33 [App Term, 9th & 10th Jud Dists 2011]; People v Stoliarov, 21 Misc 3d 135[A], 2008 NY Slip Op 52209[U] [App Term, 9th & 10th Jud Dists 2008]; People v Cani, 17 Misc 3d 134[A], 2007 NY Slip Op 52167[U] [App Term, 9th & 10th Jud Dists 2007]). Thus, the trooper's testimony that he had received training to visually estimate the rate of speed of a vehicle and that he had determined defendant's rate of speed to be 78 miles per hour, which was nearly identical to the 77 mile per hour rate that the laser had measured, was sufficient to prove a violation of Vehicle and Traffic Law § 1180 (b) (see People v Knight, 72 NY2d at 488). In any event, the trooper's testimony that he had visually estimated the speed of defendant's vehicle to be 78 miles per hour, which exceeded the posted speed limit by 23 miles per hour, was alone sufficient to establish defendant's guilt beyond a reasonable doubt (see People v Olsen, 22 NY2d 230, 232 [1968]).

With regard to defendant's claim that he was denied his right to discovery, the provision governing discovery in a criminal action, CPL 240.20, is not applicable to a defendant who is being prosecuted by a simplified traffic information charging a traffic infraction (see Matter of Miller v Schwartz, 72 NY2d 869 [1988]; cf. CPL 100.25 [a defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to a supporting deposition of the complainant police officer]). As to defendant's remaining contentions, they are either raised for the first time on appeal or dehors the record (see People v Bregaudit, 31 Misc 3d 152[A], 2011 NY Slip Op 51136[U] [App Term, 9th & 10th Jud Dists 2011]; People v Bellamy, 5 Misc 3d 131[A], 2004 NY Slip Op 51347[U] [App Term, 9th & 10th Jud Dists 2004]). In any event, inasmuch as there was nothing in the record to support defendant's contention that the court acted in a manner that deprived him of a fair trial or demonstrated any bias toward him, and particularly since defendant failed to interpose "any specific, relevant objection to the trial court's alleged bias" (People v Prado, 1 AD3d 533, 534 [2003]), the judgment of conviction should not be disturbed on this ground (see People v Kikkenborg, 27 Misc 3d 133[A], 2010 NY Slip Op 50710[U] [App Term, 9th & 10th Jud Dists 2010]; People v Ohberg, 6 Misc 3d 129[A], 2005 NY Slip Op 50060[U] [App Term, 9th & 10th Jud Dists 2005]).

Additionally, it is well settled that "unlike territorial jurisdiction (CPL 20.20) which goes to the very essence of the State's power to prosecute and which may never be waived—questions relating only to the proper place for the trial are waivable" (People v McLaughlin, 80 NY2d 466, 471 [1992]). Therefore, since defendant did not challenge the geographical jurisdiction of the Justice Court of the Town of East Fishkill until after his trial, the issue is not preserved for appellate review (see People v McLaughlin, 80 NY2d at 471; People v Hinds, 77 AD3d 429 [2010]; People v Smyth, 33 Misc 3d 136[A], 2011 NY Slip Op 52044[U] [App Term, 9th & 10th Jud Dists 2011]; People v Cohen, 32 Misc 3d 130[A], 2011 NY Slip Op 51309[U] [App Term, 9th & 10th Jud Dists 2011]). We decline to review this issue as a matter of discretion in the interest of justice.

Finally, it should be noted that no appeal as of right lies from a denial of a defendant's motion pursuant to CPL 440.10 seeking to vacate the judgment of conviction, and defendant did not seek permission to appeal therefrom (CPL 450.15 [1]; see People v Ai Jiang, 62 AD3d 515 [2009]; People v Tatta, 196 AD2d 328 [1994]; People v Everle, 37 Misc 3d 58 [App Term, 9th & 10th Jud Dists 2012]; People v Gennimi, 30 Misc 3d 23 [App Term, 9th & 10th Jud Dists 2010]).

Accordingly, the judgment of conviction is affirmed.

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Decision Date: August 05, 2014