People v. Espinal

• Citation: 2021 NY Slip Op 50946 (U)
• Decision Date: 23 September 2021
• Docket Number: 2020-602 S CR
• Parties: The People of the State of New York, Respondent, v. Douglas A. Espinal, Appellant.
• Court: New York Supreme Court

2021 NY Slip Op 50946(U)

The People of the State of New York, Respondent,
v.
Douglas A. Espinal, Appellant.

2020-602 S CR

Supreme Court of New York, Second Department

September 23, 2021

Unpublished Opinion

Scott Lockwood, for appellant.

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

PRESENT: TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ.

Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Patricia M. Filiberto, J.H.O.), rendered January 24, 2020. The judgment convicted defendant, after a nonjury trial, of using a portable electronic device while operating a motor vehicle while the vehicle is in motion, and imposed sentence. The appeal from the judgment of conviction brings up for review that court's postconviction suspension of defendant's driver's license.

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial, defendant was found guilty of using a portable electronic device while operating a motor vehicle while the vehicle is in motion (Vehicle and Traffic Law § 1225-d [1]), and he was fined $150 and his driver's license was suspended for six months (see Vehicle and Traffic Law § 510 [3] [a]).

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 N.Y.3d 342, 348 [2007]). "Necessarily, in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution's witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt" (id. at 349). If a finding in favor of the defendant "would not have been unreasonable" (People v Curry, 112 A.D.3d 843, 844 [2013]), this court "must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (Danielson, 9 N.Y.3d at 348). Nonetheless, great deference is accorded to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 N.Y.3d 888, 890 [2006]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]).

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." A "portable electronic device" is defined as including a "hand-held mobile telephone" (Vehicle and Traffic Law § 1225-d [2] [a]). Additionally, "[a] person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle... is presumed to be using such device... [and t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not using the device within the meaning of this section" (Vehicle and Traffic Law § 1225-d [4]; see Vehicle and Traffic Law § 1225-d [2] [b] [defining the word "using"]).

Here, a Suffolk County Police Officer testified at trial...