| People v Tortora (Susan) |
| 2008 NY Slip Op 52564(U) [21 Misc 3d 146(A)] |
| Decided on December 19, 2008 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the Justice Court of the Village of Rhinebeck, Dutchess County
(John B. Kane, Jr., J.), rendered December 21, 2007. The judgment convicted defendant, after a
nonjury trial, of speeding.
Judgment of conviction reversed on the law, simplified information dismissed and fine, if paid, remitted.
After a nonjury trial, at which stenographic minutes were not taken, the court found defendant guilty of speeding (Vehicle and Traffic Law § 1180 [d]) in that he drove at 50 miles per hour in a 30 miles per hour zone which, according to the court's return, "had a sign indicating 30 mph before the defendant was stopped." The trooper who issued the summons had offered the conclusion that defendant was "in a 30 mph zone in the village" and further testified, according to the justice's return, that "there were several signs listing a 30 mph zone." Defendant took the stand and "did not concede that there was in fact a sign of such a speed limit."
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we are of the opinion that the proof was not legally sufficient to establish all of the elements of the traffic infraction of speeding beyond a reasonable doubt (see Vehicle and Traffic Law §§ 1180 [d]; 1683 [a] [15]). The locations of the signs, and the manner of their placement, were not adequately described in the testimony (see People v Lathrop, 3 NY2d 551, 553 [1958]; People v Stafford, 62 Misc 2d 1027, 1030 [1970]; People v Higby, 27 Misc 2d 362, 364 [1960]; Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Book 62A, Vehicle and Traffic Law § 1110, at 463), so as to show substantial compliance with the statute "by the placement of speed signs in such a manner and at such locations as to afford this defendant fair notice of the limits of speed within the village" (Lathrop at 553). Although the trial court ultimately found that the speed zone "had a sign indicating 30 mph before the [*2]defendant was stopped," we determine that this finding lacks support in its summary of the evidence.
Accordingly, the judgment of conviction is reversed and the simplified information dismissed.
Rudolph, P.J., Molia and Scheinkman, JJ., concur.
Decision Date: December 19, 2008