People v Flierl (Marcella)

[*1] People v Flierl (Marcella) 2021 NY Slip Op 51066(U) Decided on November 4, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ELIZABETH H. EMERSON, J.P., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ
2020-240 S CR

The People of the State of New York, Respondent,

against

Marcella L. Flierl, 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 (Lewis A. Silverman, J.H.O.), rendered December 6, 2019. The judgment, after a nonjury trial, convicted defendant of speeding, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in separate simplified traffic informations with speeding (Vehicle and Traffic Law § 1180 [b]) and operating a motor vehicle without insurance (Vehicle and Traffic Law § 319 [1]). The Vehicle and Traffic Law § 319 (1) charge was withdrawn and, following a nonjury trial, defendant was convicted of speeding.

The pretrial suspension of defendant's driver's license, which can be suspended without notice pending prosecution (see Vehicle and Traffic Law § 510 [3-a]), was an administrative act which is reviewable only by the Supreme Court in an article 78 proceeding (see Vehicle and Traffic Law § 510 [7]; People v Pocrass, 57 Misc 3d 153[A], 2017 NY Slip Op 51596[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]) and is not reviewable on a direct appeal (see CPL 450.10, 450.15; Pocrass, 2017 NY Slip Op 51596[U]).

Although defendant was entitled to Rosario material (see CPL 240.45 [repealed effective January 1, 2020]; People v Palu, 22 Misc 3d 139[A], 2009 NY Slip Op 50354[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]), reversal is not warranted here based upon defendant's counsel's claim that he had not received the supporting deposition accompanying the simplified traffic information charging defendant with operating a motor vehicle without insurance, as defendant failed to show that there is a reasonable possibility that the nondisclosure materially contributed to his conviction of speeding (see CPL 240.75 [repealed effective January 1, 2020]; People v Matos, 60 Misc 3d 130[A], 2018 NY Slip Op 50994[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Roche, 31 Misc 3d 142[A], 2011 NY Slip Op 50833[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]).

To the extent that defendant's contentions pertaining to his conviction are considered legal insufficiency claims, they are not preserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). Nonetheless, upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one appellate review of adverse factual findings" (People v Danielson, 9 NY3d 342, 348 [2007]). Following a review of the record, we conclude that the verdict convicting defendant of speeding was not against the weight of the evidence (see People v Olsen, 22 NY2d 230, 232 [1968]; People v Dusing, 5 NY2d 126, 128 [1959]; People v Forrester, 71 Misc 3d 127[A], 2021 NY Slip Op 50229[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Jacobs, 62 Misc 3d 126[A], 2018 NY Slip Op 51852[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

We have reviewed defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit (see People v Espinal, ___ Misc 3d ____, 2021 NY Slip Op 50946[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; Forrester, 2021 NY Slip Op 50229[U]; People v Massian, 60 Misc 3d 134[A], 2018 NY Slip Op 51049[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Cataldo, 57 Misc 3d 153[A], 2017 NY Slip Op 51597[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]).

Accordingly, the judgment of conviction is affirmed.

EMERSON, J.P., DRISCOLL and VOUTSINAS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 4, 2021