People v Breen (James)

[*1] People v Breen (James) 2021 NY Slip Op 51238(U) Decided on December 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : HELEN VOUTSINAS, J.P., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ
2019-1860 S CR

The People of the State of New York, Respondent,

against

James P. Breen, Appellant.

James P. Breen, appellant pro se. 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 Silverman, J.H.O.), rendered October 23, 2019. The judgment, after a nonjury trial, convicted defendant of failing to stop at a stop sign, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial, defendant was convicted of failing to stop at a stop sign in violation of Vehicle and Traffic Law § 1172 (a), and was sentenced to a fine. On appeal, defendant contends, among other things, that the trial court improperly refused to admit a scale drawing of the site of the incident into evidence; that the evidence was legally insufficient; and that the verdict was against the weight of the evidence.

A review of the record indicates that defendant failed to lay a proper foundation for the admission of the scale drawing into evidence (see People v Patterson, 93 NY2d 80, 84 [1999]; Corsi v Town of Bedford, 58 AD3d 225, 228 [2008]). Further, defendant's legal sufficiency contention is unpreserved for appellate review, since he raised no such objection at trial (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). Nevertheless, since there is no preservation requirement associated with defendant's contention that the court's verdict was against the weight of the evidence, we necessarily determine whether all of the elements of the crime charged were [*2]proven beyond a reasonable doubt as part of our weight of the evidence review (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Thiel, 134 AD3d 1237 [2015]).

Vehicle and Traffic Law § 1172 (a) provides that a "driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line." The police officer testified that he had observed defendant fail to come to a full stop at the stop sign and that, from where he was positioned in his police car, he had an unobstructed view of the stop sign, stop line and intersection. Although the officer testified that there was a stop line, he never testified that he had observed defendant fail to stop at the stop line. However, defendant subsequently testified that the stop sign was located more than 40 feet before the intersection, and, after he had "made a complete stop at the stop sign and saw that it was clear to proceed, [he] did so," and did not stop again before he proceeded through the intersection. The photograph entered into evidence as Defendant's Exhibit D shows that the stop line is located well past the stop sign, closer to the intersection. Therefore, defendant's testimony that he did not stop again after he stopped at the stop sign before heading through the intersection demonstrated that he necessarily did not stop at the stop line as is required by Vehicle and Traffic Law § 1172 (a).

In view of the foregoing, upon the exercise of this court's factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d at 348-349), we find that the verdict convicting defendant of violating Vehicle and Traffic Law § 1172 (a) was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]). Defendant's remaining contentions are dehors the record and/or are unpreserved for appellate review.

Accordingly, the judgment of conviction is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 16, 2021