People v. Pappas, 2008 NY Slip Op 50903(U) (N.Y. App. Term 4/21/2008), 2006-2177 D CR.

• Decision Date: 21 April 2008
• Docket Number: 2006-2177 D CR.
• Citation: 2008 NY Slip Op 50903
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LESLIE PAPPAS, Appellant.
• Court: New York Supreme Court — Appellate Term

Page 1

2008 NY Slip Op 50903(U)

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LESLIE PAPPAS, Appellant.

2006-2177 D CR.

Appellate Term of the Supreme Court of New York, Second Department.

Decided April 21, 2008.

Appeal from a judgment of the Justice Court of the Town of LaGrange, Dutchess County (Stephen L. Greller, J.), rendered December 12, 2006. The judgment convicted defendant, after a nonjury trial, of speeding.

Judgment of conviction affirmed.

PRESENT: TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ.

Defendant was convicted of the traffic infraction of speeding (Vehicle and Traffic Law § 1180 [b]) for driving at 70 miles per hour in a 55-mile-per-hour zone on the Taconic State Parkway in LaGrange. Stenographic minutes were not taken of the trial during which, it is undisputed upon this appeal, the State Trooper who issued the ticket acted in a prosecutorial capacity.

The justice's return contradicts defendant's general contention that the trial court acted as a prosecutor establishing the People's prima case, since it denies that the court so acted and states that the court did not engage in direct questioning of the trooper. Furthermore, the instant case involved a charge of a traffic infraction, speeding, without an assistant district attorney or the Town Attorney to prosecute the case, and thus "it was not error for the Justice to question the witness in order to elicit sufficient facts to enable him to reach a decision" (People v. DeLeyden, 10 NY2d 293, 294 [1961]; see People v. Dudas, 1 Misc 3d 132[A], 2003 NY Slip Op 51623[U] [App Term, 9th & 10th Jud Dists 2003]; cf. People v. Arnold, 98 NY2d 63, 67 [2002]; People v. Yut Wai Tom, 53 NY2d 44, 58 [1981]).

A trial court has the discretion to allow testimony in a narrative form (People v. Osuna, 103 AD2d 719, 720 [1984], affd 65 NY2d 822 [1985]). Because of the petty nature of the case and the absence of an assistant district attorney or the Town Attorney to propound questions, we do not deem the trial court to have abused its discretion in allowing such testimony (People v Soddano, 86 NY2d 727, 728 [1995]; People v. DeLeyden, 10 NY2d at 294; People v. Dudas, 1 Misc 3d 132[A], 2003 NY Slip Op 51623[U] [2003], supra). Nor was defendant denied her constitutional right to confront her accuser by such testimony being given in narrative form. In the case at bar, the presence of Trooper Natale, whose testimony was subject to objections and cross-examination, afforded defendant this right (see People v. Pacer, 6 NY3d 504, 512 [2006]).

Lastly, there was no violation of the advocate-witness rule by the trooper being permitted to prosecute the case since he was not an attorney and such rule, which is set forth in the Code of Professional Responsibility, is only applicable to the conduct of...