People v Podmalovsky (Kamil)

[*1] People v Podmalovsky (Kamil) 2018 NY Slip Op 51860(U) Decided on December 13, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
2017-399 S CR

The People of the State of New York, Respondent,

against

Kamil Podmalovsky, Appellant.

Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.

Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Paul H. Senzer, J.H.O.), rendered November 30, 2016. The judgment convicted defendant, after a nonjury trial, of speeding, and imposed sentence.

ORDERED that the judgment of conviction is reversed, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, for all further proceedings.

Defendant was charged in a simplified traffic information with speeding (Vehicle and Traffic Law § 1180 [b]) in that defendant was allegedly traveling at 80 miles per hour (mph) in a 55 mph zone. Since defendant was charged with a traffic infraction subjecting him to the possibility of imprisonment if convicted (see Vehicle and Traffic Law § 1180 [h] [1] [ii]), the trial court was required to advise defendant, prior to trial, of his right to counsel as well as his right to, among other things, an adjournment to obtain counsel (see CPL 170.10 [3], [4]; People v Linden, 52 Misc 3d 134[A], 2016 NY Slip Op 51019[U] [App Term, 2d Dept, 9th and 10th Jud Dists 2016]; People v Rios, 9 Misc 3d 1 [App Term, 2d Dept, 9th and 10th Jud Dists 2005]; People v Weinstock, 80 Misc 2d 510 [App Term, 2d Dept, 9th & 10th Jud Dists 1974]). There has been no showing, upon the record presented, that subsections 3 and 4 of CPL 170.10 have been complied with (see CPL 170.10 [5]). We note, however, that the record contains a letter dated prior to trial from the court to defendant which stated in pertinent part: "You are entitled to be represented by an attorney at the proceedings . . . . Requests for adjournments within Ten (10) days of the scheduled appearance date may not be granted except in cases of extreme hardship." We need not reach the issue of whether this letter was sufficient to advise defendant of his right to counsel as well as of his right to an adjournment to obtain counsel, since, as defendant appeared for trial without counsel, the court, in any event, was required to inform him that he continued to have the rights to counsel and an adjournment to obtain counsel, and "that he may exercise such rights at any stage of the action" (CPL 170.10 [6]).

We pass on no other issue.

Accordingly, the judgment of conviction is reversed and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, for all further proceedings.

GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2018