People v Kohl (Menachem)

[*1] People v Kohl (Menachem) 2018 NY Slip Op 28383 Decided on November 29, 2018 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on November 29, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
2018-131 RO CR

The People of the State of New York, Respondent,

against

Menachem Kohl, Appellant.

Menachem Kohl, appellant pro se. Clarkstown Town Attorney (Paul K. Schofield of counsel), for respondent.

Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (David M. Ascher, J.), rendered November 30, 2017. The judgment convicted defendant, after a nonjury trial, of failing to exercise due care to avoid colliding with a stopped emergency vehicle, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with failing to exercise due care to avoid colliding with a stopped emergency vehicle (Vehicle and Traffic Law § 1144-a [a]). At a nonjury trial, a New York State trooper testified that, on March 30, 2017, while conducting a traffic stop at 10:45 p.m., his police emergency vehicle had its lights turned on and was stopped at the side of the road on the Palisades Parkway. Defendant's vehicle approached in the lane adjacent to the trooper's vehicle. The trooper further testified that, although there were no other vehicles to prevent defendant from changing lanes, defendant had failed to move out of the lane which was adjacent to where the trooper's vehicle was stopped. Defendant testified that he had slowed down as he approached the trooper's vehicle and that he could not move over to the next lane because the road was wet, it was dark and he was tired.

Following the trial, the Justice Court found defendant guilty of the charged offense and initially imposed a fine of $207, but later resentenced defendant to a fine of $150.

On appeal, defendant contends that the $207 fine initially imposed by the Justice Court was not an authorized sentence. In addition, defendant contends that because he was tired, it was raining, the road was wet and it was dark, he could not move out of the lane that he had been driving in. Moreover, he should not have been found guilty of violating Vehicle and Traffic Law § 1144-a (a) because he had slowed his vehicle down in response to the presence of the police vehicle.

Pursuant to Vehicle and Traffic Law § 1144-a (a), when an authorized emergency vehicle displaying emergency lights is parked, stopped or standing on the shoulder of a parkway, or on any portion of a controlled access highway, the operator of a motor vehicle approaching the stopped emergency vehicle shall exercise "due care [which] shall include, but not be limited to, moving from a lane which contains or is immediately adjacent to the shoulder where such authorized emergency vehicle . . . is parked, stopped or standing to another lane, provided that such movement otherwise complies with the requirements" of the Vehicle and Traffic Law.

Here, the trooper's testimony established, prima facie, a violation of Vehicle and Traffic Law § 1144-a (a), as defendant had failed to move from the lane that was immediately adjacent to the stopped emergency vehicle when it had been safe to do so (see Vehicle and Traffic Law § 1128 [a]). The facts that defendant had been tired, that it was dark and that the road was wet did not, under the circumstances presented, reasonably constitute conditions which would have prevented him from exercising due care in moving out of a lane that was adjacent to where the emergency vehicle was stopped. Moreover, defendant's testimony that he had slowed down as he had approached the emergency vehicle was insufficient to establish that he had exercised due care in compliance with Vehicle and Traffic Law § 1144-a (a), as this is not an acceptable alternative to moving out of the lane immediately adjacent to a stopped emergency vehicle where he could have safely changed lanes.

As the Justice Court resentenced defendant to the maximum allowable fine of $150 (see Vehicle and Traffic Law § 1800 [b] [1]), defendant's contention regarding the sentence imposed has been rendered moot.

Accordingly, the judgment of conviction is affirmed.

TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2018