People v Fallah-Braimah (Settu)

[*1] People v Fallah-Braimah (Settu) 2017 NY Slip Op 51445(U) Decided on October 26, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ
NO. 2016-227 N CR

The People of the State of New York, Respondent,

against

Settu Fallah-Braimah, Appellant.

Settu Fallah-Braimah, appellant pro se. Deputy Village Attorney, Village of Freeport (Robert McLaughlin, Esq.), for respondent (no brief filed).

Appeal from a judgment of the Justice Court of the Village of Freeport, Nassau County (Susan B. Lyons, J.), rendered September 23, 2015. The judgment convicted defendant, after a nonjury trial, of speeding.

ORDERED that the judgment of conviction is reversed, on the law and as a matter of discretion in the interest of justice, the simplified traffic information is dismissed, and the fine and surcharge are remitted.

In a simplified traffic information dated June 18, 2014, defendant was charged with speeding, by driving at 50 miles per hour in a 30 mile-per-hour zone, on North Main Street southbound near Evans Avenue in the Village of Freeport, Nassau County. At a nonjury trial, a Village of Freeport police officer testified that he had received three days of training at the Nassau County Police Department regarding "the laser, speed training and radar." He has been a police officer for 18 years. He had been certified as a radar and laser operator at the Nassau County Police Department, and obtained a "completion certificate." At approximately 8:45 a.m. on June 18, 2014, he stopped a vehicle that he had observed traveling southbound "at a high rate of speed" on North Main Street at Evans Avenue in the Village of Freeport, Nassau County. He had pointed a laser gun at the vehicle, at a slight angle, and recorded its speed at 50 miles per hour. The speed limit was 30 miles per hour. The officer was facing northbound on North Main Street.

Following the trial, the Justice Court found defendant guilty as charged, and imposed a fine of $150 and a surcharge of $93.

With respect to the officer's testimony as to the reading from the laser device, that defendant was traveling at 50 miles per hour in a 30 mile-per-hour zone, we note that no proof was presented at the trial regarding the calibration of the laser device or that it had been tested. [*2]The officer further testified that, based on his visual observation, defendant had been traveling "at a high rate of speed," but he did not provide an estimate of her speed in miles per hour. While a reading from an untested device in conjunction with the testimony of a qualified witness as to his or her estimate of the speed of a defendant's vehicle in miles per hour is sufficient to establish a defendant's guilt of speeding (see People v Dusing, 5 NY2d 126, 128 [1959]; People v Linden, 52 Misc 3d 134[A], 2016 NY Slip Op 51019[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v Solanet, 44 Misc 3d 138[A], 2014 NY Slip Op 51253[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Susana, 29 Misc 3d 144[A], 2010 NY Slip Op 52218[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), the officer's testimony in this case did not meet that standard (see People v Berger, 31 Misc 3d 145[A], 2011 NY Slip Op 50937[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]). Consequently, the evidence failed to establish defendant's guilt of speeding beyond a reasonable doubt.

While defendant did not preserve the claim that the evidence was not legally sufficient to establish her guilt of speeding beyond a reasonable doubt (see CPL 470.05 [2]), we reach the issue as a matter of discretion in the interest of justice.

Accordingly, the judgment of conviction is reversed and the simplified traffic information is dismissed.

GARGUILO, J.P., TOLBERT and RUDERMAN, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 26, 2017