People v. Cervera

• Citation: 40 Misc.3d 89,971 N.Y.S.2d 789,2013 N.Y. Slip Op. 23234
• Parties: The PEOPLE of the State of New York, Respondent, v. Frank CERVERA, Appellant.
• Decision Date: 08 July 2013
• Court: New York Supreme Court Appellate Division

40 Misc.3d 89

971 N.Y.S.2d 789

2013 N.Y. Slip Op. 23234

The PEOPLE of the State of New York, Respondent,

v.Frank CERVERA, Appellant.

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

July 8, 2013.

Francis D. Phillips II, District Attorney, Middletown (Andrew R. Kass of counsel), for respondent.

Frank Cervera, appellant pro se.

PRESENT: NICOLAI, P.J., IANNACCI and TOLBERT, JJ.

Appeal from a judgment of the Justice Court of the Town of Minisink, Orange County (G. Steven Hadden, J.), rendered April 7, 2011. The judgment convicted defendant, after a nonjury trial, of speeding.

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Justice Court for a new trial.

Defendant was convicted after a nonjury trial of speeding (Vehicle and Traffic Law § 1180[d] ). The state trooper who had executed the simplified traffic information charging defendant with traveling 50 miles per hour in a 45 miles per hour speed zone, testified at a nonjury trial as to his expertise in estimating vehicle speeds within five miles per hour of their true speeds and his calibration and use of a radar device, the results of which had corroborated his visual estimate. The trooper stated that defendant, in fact, had traveled 60 miles per hour in the zone in question and that the trooper had charged a lesser violation because defendant hitherto had a “clean” driving record and because his conduct during their encounter had been “decent.” Defendant testified as to the road and visibility conditions at the time of the alleged infraction, arguing that the reliability of the trooper's estimate and the accuracy of the radar device's reading were so compromised by those conditions as to render them insufficiently reliable to support a conviction. At the conclusion of his testimony, defendant sought to produce a witness, alleged to have operated a vehicle near defendant's automobile at the time of the infraction, whose testimony would support defendant's account of the conditions and that their respective speeds were within the posted limit. The Justice Court sustained the trooper's objection to the witness on the ground that the witness had been present during the prior testimony and, thus, the witness's testimony was fatally compromised. The Justice Court convicted defendant of the offense. Defendant appeals, arguing, among other things, that the trooper could not function as both prosecutor and witness, thereby violating the witness/advocate rule; that the proof was legally insufficient to support the conviction and, in any event, the verdict was against the weight of the evidence; and that the preclusion of the witness deprived him of his right to present a defense.

The first and second of these contentions are without merit. County Law § 700(1) is construed to permit the delegation of the prosecutions of petty crimes and offenses to “subordinates and other public or administrative officers and even to private attorneys” ( People v. Soddano, 86 N.Y.2d 727, 728, 631 N.Y.S.2d 120, 655 N.E.2d 161 [1995];see also Matter of People v. Christensen, 77 A.D.3d 174, 190, 906 N.Y.S.2d 301 [2010];People v. Murphy, 29 Misc.3d 79, 81, 912 N.Y.S.2d 372 [App. Term, 9th & 10th Jud. Dists. 2010] ). Furthermore, the witness/advocate rule applies only to attorneys, and, thus, “[p]olice officers are permitted to act as prosecutors and witnesses in the same case” ( People v. Rosenbaum, 21 Misc.3d 135[A], 2008 N.Y. Slip Op. 52207[U], *1–2, 2008 WL 4812723 [App. Term, 9th & 10th Jud. Dists. 2008]; see also People v. Paperno, 54 N.Y.2d 294, 299, 445 N.Y.S.2d 119, 429 N.E.2d 797 [1981];People v. Pappas, 19 Misc.3d 140[A], 2008 N.Y. Slip Op. 50903[U], 2008 WL 1902719 [App. Term, 9th & 10th Jud. Dists. 2008] ).

Viewed in the light most favorable to the People ( People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we find that the trooper's unrebutted evidence was legally sufficient to sustain the conviction ( People v. Dusing, 5 N.Y.2d 126, 128, 181 N.Y.S.2d 493, 155 N.E.2d 393 [1959];People v. Tsys, 29 Misc.3d 143[A], 2010 N.Y. Slip Op. 52213[U], 2010 WL 5186623 [App. Term, 9th & 10th Jud. Dists. 2010] ). While the 15 miles per hour variance between the officer's estimate of defendant's vehicle's speed and the speed limit did not exceed the 20 miles per hour differential deemed “clearly sufficient” to support a speeding conviction based on a visual estimate ( People v. Olsen, 22 N.Y.2d 230, 232, 292 N.Y.S.2d 420, 239 N.E.2d 354 [1968];People v. Moirzadeh, 31 Misc.3d 145[A], 2011 N.Y. Slip Op. 50939[U], 2011 WL 2084233 [App. Term, 9th & 10th Jud. Dists. 2011] ), even a reading from an uncalibrated radar device may sufficiently corroborate a trooper's visual estimate ( People v. Magri, 3 N.Y.2d 562, 567, 170 N.Y.S.2d 335, 147 N.E.2d 728 [1958];People v. Tsys, 29 Misc.3d 143[A], 2010 N.Y. Slip Op. 52213[U] ). In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), and according the requisite deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor ( People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004];People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), we find that the conviction was not against the weight of the credible evidence. The trooper's testimony was unrebutted, persuasive on its face, and unmarred by material discrepancies. On this record, there is no reason to discredit the trooper's testimony that defendant traveled 60 miles per hour in a 45 miles per hour speed zone.

However, the preclusion of defendant's witness warrants a new trial. There is no dispute that the witness, alleged to have been driving an automobile in defendant's vicinity when the trooper measured defendant's speed, was present throughout the proceedings prior to being called. It is well settled that, in the context of a public trial, “the exclusion of a witness during the testimony of another concerning ‘events or facts in dispute’ is sanctioned as a device to preserve the truth-seeking function by ‘preventing one prospective witness from being taught by hearing another's testimony’ ” ( People v. Sayavong, 83 N.Y.2d 702, 708, 613 N.Y.S.2d 343, 635 N.E.2d 1213 [1994], quoting People v. Santana, 80 N.Y.2d 92, 100, 587 N.Y.S.2d 570, 600 N.E.2d 201 [1992];see also People v. Stearns, 72 A.D.3d 1214, 1217, 898 N.Y.S.2d 348 [2010];People v. Smith, 111 A.D.2d 883, 490 N.Y.S.2d 277 [1985] ).

In People v. Brown, 274 A.D.2d 609, 610, 710 N.Y.S.2d 194 [2000], the court stated:

“It is axiomatic that when a defense witness in a criminal prosecution is prospectively excluded from testifying, the defendant's 6th Amendment rights are implicated. It is equally well settled that a defendant's right to present evidence is not absolute but, rather, is subject to the rules of procedure that govern the orderly presentation of evidence at trial ... Indeed, preclusion of the testimony of a defense witness, even where the testimony is highly probative, has been found to be an acceptable sanction for failure to comply with a court order ... That being the case, it seems clear that where a witness violates an order of exclusion, he or she is subject to court-imposed sanctions the severity of which are committed to the sound discretion of the trial court. And while the sanction may include precluding the witness from testifying, such sanction clearly is the most drastic available and would be appropriate only in the most egregious circumstances ... In most situations, however, alternative sanctions, such as an adverse [inference] most likely would suffice.”

Thus, the testimony of a witness who has been present during prior testimony and in violation of a preclusion order is not thereby rendered incompetent ( People v. Coble, 94 A.D.3d 1520, 1521, 943 N.Y.S.2d 352 [2012];People v. Lloyde, 106 A.D.2d 405, 482 N.Y.S.2d 326 [1984]; Jerome Prince, Richardson on Evidence § 6–205 [Farrell 11th ed. 1995] ), and the determination of the appropriate remedy in such cases is a matter generally left to the provident exercise of a trial court's discretion ( People v. Baker, 14 N.Y.3d 266, 274, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010];People v. Cooke, 292 N.Y. 185, 191, 54 N.E.2d 357 [1944];People v. Roundtree, 234 A.D.2d 58, 650 N.Y.S.2d 558 [1996] ). Here, however, the record does not indicate any instruction by the Justice Court, nor a request by the state trooper at the outset of the trial, that defendant's witnesses be identified and...