People v. Gray

• Decision Date: 08 February 2018
• Docket Number: 2016–659 S CR
• Citation: 58 Misc.3d 155 (A),95 N.Y.S.3d 125 (Table)
• Parties: The PEOPLE of the State of New York, Respondent, v. Courtnie S. GRAY, Appellant.
• Court: New York Supreme Court — Appellate Term

58 Misc.3d 155 (A)

95 N.Y.S.3d 125 (Table)

The PEOPLE of the State of New York, Respondent,

v.Courtnie S. GRAY, Appellant.

2016–659 S CR

Supreme Court, Appellate Term, New York.

Decided on February 8, 2018

Scott Lockwood, for appellant.

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

PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, TERRY JANE RUDERMAN, JJ

ORDERED that the judgment of conviction is affirmed.

In a simplified traffic information, defendant was charged with speeding ( Vehicle and Traffic Law § 1180 [b] ), in that, on August 7, 2015 at 11:30 a.m., defendant had operated his motor vehicle at a speed of 84 miles per hour in a 55 miles per hour speed zone. It was alleged in the trooper's supporting deposition that he had visually estimated defendant's rate of speed at 82 miles per hour. Defendant moved, pursuant to CPLR 2307 and CPL 610.20 (3), for the issuance of a subpoena duces tecum compelling the People to produce calibration and maintenance records of the laser device used to measure the rate of speed of defendant's vehicle, police training materials regarding speed measurement, written directives governing the maintenance of speed measuring devices and "all documentation showing an observation of personnel operating these devices to verify that officers are [in] compliance with the directives governing such devices." The court (Paul H. Senzer, J.H.O.) denied the motion.

Following a nonjury trial, at which no stenographic minutes were taken, the court (Alan M. Wolinsky, J.H.O.) found defendant guilty of speeding at 82 miles per hour, based upon the trooper's visual estimate of the speed of defendant's vehicle, and sentenced defendant to a $450 fine. A surcharge of $88 and an administrative fee of $55 were also imposed. Thereafter, in an affidavit of errors ( CPL 460.10 [3 ] ), defendant alleged, among other things, that the court had erred in allowing the trooper to give opinion testimony regarding the rate of speed at which defendant's vehicle was traveling and in allowing evidence of the laser measuring device since judicial notice had not been taken of its accuracy and there was no documentation establishing that the device was properly calibrated. Additionally, defendant alleged that the court could not impose the administrative fee in the sum of $55 since it is preempted by state law.

A subpoena enables a defendant to obtain evidence relevant to the issues that are material to the trial itself (see CPL 610.20 [3 ] ). However, the procedural mechanism of a subpoena duces tecum cannot be used to expand discovery available under existing law (see Matter of Terry D. , 81 NY2d 1042, 1045 [1993] ), or

"to circumvent the discovery provisions of CPL 240.20 [ ] to ascertain the existence of evidence or to fish for impeaching material. Rather, its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding. A showing that certain documents carry a potential for establishing relevant evidence is insufficient; instead, a defendant must put forth some factual predicate which would make it reasonably likely that documentary information will bear relevant and exculpatory evidence" (Matter of Constantine v. Leto , 157 AD2d 376, 378 [1990], affd for reasons stated below 77 NY2d 975 [1991] [internal quotation marks and citations omitted] ).

While under appropriate circumstances a defendant may be entitled to receive records documenting the maintenance and calibration testing of a speed measuring device pursuant to a subpoena duces tecum (see Matter of Constantine v. Leto , 157 AD2d at 378 [1990] ; People v. Russo, 149 AD2d 255, 257 [1989] ), here, error, if any, was harmless since the trooper's training in estimating the speed of motor vehicles was established, and visual estimation alone is sufficient to support a conviction, especially when the disparity between the posted limit and the estimated speed of travel is as wide as in the present case (see People v. Olsen , 22 NY2d 230 [1968] ). Moreover, "a reading from an...