2014-1168 S Crpeople v. Agbimson

• Decision Date: 25 May 2016
• Parties: 2014-1168 S CRThe People of the State of New York, Respondent, v. Eugene Agbimson, Appellant.
• Court: New York Supreme Court — Appellate Term

2016 NY Slip Op 50842(U)

2014-1168 S CRThe People of the State of New York, Respondent,
v.
Eugene Agbimson, Appellant.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Decided on May 25, 2016

PRESENT: : MARANO, P.J., and GARGUILO, J.

Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Paul Senzer, J.H.O.), rendered May 29, 2014. The judgment, after a nonjury trial, convicted defendant of using a portable electronic device while operating a motor vehicle.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a simplified traffic information with using a portable electronic device while operating a motor vehicle (Vehicle and Traffic Law § 1225-d [1]). At a nonjury trial, Sergeant Baranek testified that he had observed defendant's Mercedes Benz swerving back and forth within the left lane of eastbound Route 27. When he pulled his vehicle alongside defendant's vehicle and looked inside, Sergeant Baranek saw defendant looking down at a cell phone, which he was holding in his left hand. Sergeant Baranek further testified that he could see the illumination emitted from the screen of the cell phone, which also cast a light on defendant's upper body. Sergeant Baranek then used his vehicle's "takedown" light to illuminate the interior compartment of defendant's vehicle and, as a result, was able to confirm that defendant was looking down at the screen of his phone, which he held in his left hand while driving. Defendant testified that, while he was driving, his phone had rung, and that he had picked it up to look at it and then used his left hand to switch the phone off. Crediting the sergeant's testimony, the District Court found defendant guilty of violating Vehicle and Traffic Law § 1225-d (1) and imposed a fine of $150.

Insofar as is relevant to this appeal, Vehicle and Traffic Law § 1225-d (1) provides that "no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion." For purposes of the statute, a "portable electronic device" includes a hand-held mobile telephone (Vehicle and Traffic Law § 1225-d [2] [a]) and "using" this device means "holding [it] while viewing, taking or transmitting images, playing games, or, for the purpose of present or future communication: performing a command or request to access a world wide web page, composing, sending, reading, viewing,...