Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John DeLury, J.H.O.), rendered May 21, 2010. The judgment convicted defendant, after a nonjury trial, of reckless driving.

ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine, if paid, is remitted.

The People charged defendant with reckless driving (Vehicle and Traffic Law § 1212). At a nonjury trial, the prosecution's sole witness testified that defendant had crossed double yellow lines without signaling and, while in the opposing lane of traffic, had passed three or four slow-moving vehicles before re-entering his proper lane of travel. Defendant was found guilty as charged and, on appeal, argues, among other matters, that the evidence was legally insufficient to support the conviction, and that the conviction was, in any event, against the weight of the evidence.

While defendant failed to preserve for appellate review his claim that the trial evidence was legally insufficient to prove that he violated the reckless driving statute (CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]), in the exercise of our authority to review the weight of the evidence (CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we agree that, assessed in light of the elements of the offense, the verdict, following the nonjury trial, was against the weight of the evidence (see People v Danielson, 9 NY3d 342). Although the officer's testimony may have established that [*2]defendant committed multiple traffic infractions, there was insufficient evidence that defendant's operation of his vehicle "unreasonably interfere[d]" with anyone's use of the oncoming lane or the lane from which he left and returned, or that he thereby "unreasonably endangere[d]" anyone or anyone's property (Vehicle and Traffic Law § 1212; compare People v Lamphear, 35 AD2d 305, 308 [1970], and People v Delvois (Marco), 32 Misc 3d 133[A], 2011 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2011], with People v Bulgin, 29 Misc 3d 286, 295-296 [Sup Ct, Bronx County 2010], and People v Dipoumbi, 23 Misc 3d 1127[A], 2009 NY Slip Op 50974[U] [Crim Ct, NY County 2009]). Accordingly, the judgment of conviction is reversed and the accusatory instrument dismissed.

In light of this determination, we need not address defendant's remaining contention.

Rios, J.P., and Weston, J., concur.

Golia, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : RIOS, J.P., WESTON and GOLIA, JJ.
THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-against-

NO. 2010-1810 K CR

DECIDED
ARTHUR KHURSHUDYAN,

Appellant.

Golia, J., dissents and votes to affirm the judgment of conviction in the following memorandum:

The arresting officer testified to the following facts: the officer observed defendant's vehicle cross over a double yellow line on the roadway; defendant then passed three or four cars at a high rate of speed; and, after the arresting officer had activated his siren, a chase began [*3]during which defendant continued to travel at a high rate of speed for approximately five blocks before stopping. Indeed, the information charging defendant noted that the arresting officer had observed defendant fail to signal when crossing the double yellow lines and, at trial, defendant admitted to the presence of slower moving traffic on the roadway.

Of the numerous arguments to be made on appeal by a criminal defendant, one of the most difficult to prevail upon is that the conviction was against the weight of the evidence. The Appellate Division, Second Department, has stated that when hearing an appeal on the weight of the evidence, the appellate court should not disturb the determination of the trier of fact unless it is "clearly unsupported by the record" (People v Martinez, 216 AD2d 586, 587 [1995]).

Under a weight of the evidence review, the appellate court first determines whether, "based on all the credible evidence, a different finding would not have been unreasonable" (People v Bleakley, 69 NY2d 490, 495 [1987]). If such a finding would not have been unreasonable, "then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from testimony" (id. [internal quotation marks omitted], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). If the appellate court concludes "that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict" (Bleakley, 69 NY2d at 495; see CPL 470.20 [2]). Here, the only relevant conflict in testimony appears to be defendant's denial that he drove his vehicle at a high rate of speed.

Despite defendant's argument to the contrary, for which he provides no precedential support, there is no requirement that a specific driver or pedestrian be identified to whom defendant posed a danger. Furthermore, to subscribe to such a view of the law would be to concede that a driver operating a car at 120 miles per hour down a highway, expertly weaving in between all cars in his path without injuring an identifiable party, would not be guilty of reckless driving, when surely such manner of driving would "unreasonably endanger users of the public highway" (Vehicle and Traffic Law § 1212).

Somewhat similar to defendant's argument above, the majority cites to several cases in support of the contention that defendant could not be guilty of reckless driving because "there was insufficient evidence that defendant's operation of his vehicle unreasonably interfered with anyone's use of the oncoming lane or the lane from which he left and returned, or that he thereby unreasonably endangered anyone or anyone's property" (internal quotation marks omitted). However, while one of the cases cited by the majority emanates from this court, none emanate from a court with superior binding authority over this court. Furthermore, the cited decisions from the Appellate Term, Second Department, and the Appellate Division, Third Department, merely represent instances where a specific interference was shown, and was therefore cited as a reason for the charge and conviction (see People v Lamphear, 35 AD2d 305 [1970] and People v Delvois, 32 Misc 3d 133[A], 2011 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). These decisions do not, however, demand that such a showing be made if the crime of reckless driving is to be made out, nor does the law demand such a showing. The two cited decisions which do point to the absence of a specific interference as reason for declining to convict the defendant of reckless driving are from the Bronx County Supreme Court and the New York County Criminal Court, whose decisions are not binding upon this court (People v Bulgin, [*4]29 Misc 3d 286 [Sup Ct, Bronx County 2010]; People v Dipoumbi, 23 Misc 3d 1127[A], 2009 NY Slip Op 50974[U] [Crim Ct, NY County 2009]).

The definition of "reckless" describes a manner of action in which one consciously disregards an evident danger (see Penal Law § 15.05). It is not necessary for actual injury to occur. The law is, in part, structured to prevent unwanted occurrences. It cannot be so bound as to never permit preventative action and to allow only remediation after an innocent party has been made a victim. Furthermore, because it is possible to point to the presence or absence of an infinite number of factors in various reckless driving cases, no two instances can be exactly alike. Thus, it is for the trier of fact to determine guilt or innocence based upon the specific and discrete totality of circumstances which constitute the particular case.

With specific regard to the unreasonable danger posed by defendant's actions, there are a myriad of circumstances which presented a danger to the public. I offer three: (1) any of the cars in front of defendant could have made a left turn, and would have had no reason to believe they would be turning into the path of a car traveling at a high rate of speed from behind with sufficient time to pass them in the opposite lane and against traffic; (2) a car could have made a legal right turn into the lane occupied by defendant; or (3) a vehicle could have properly pulled out of a parking space and met defendant's vehicle head on.

Defendant contested the characterization of his speed as being at a "high rate," and the ability of the officer to observe defendant's actions. In light of this contrary testimony, it would have been possible for the trier of fact to have found defendant not guilty. However, "great deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" (Bleakley, 69 NY2d at 495). Thus, as the testimonies of the officer and defendant amounted to little more than recitations of opposing facts, the Criminal Court was within its rights to credit the testimony of the officer and to discredit the testimony of defendant.

As the evidence at trial consisted only of the testimonies of these two witnesses, it is not for this court to pronounce that the trial court erred in its crediting of the officer's testimony and failed to give proper weight to defendant's testimony. Hence, the judgment of the trial court cannot be said to be "clearly unsupported by the record" (Martinez, 216 AD2d at 587). Consequently, I would affirm the judgment of the Criminal Court.
Decision Date: February 15, 2012