[*1]
People v DiBello (William)
2015 NY Slip Op 50192(U) [46 Misc 3d 143(A)]
Decided on February 17, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : TOLBERT, J.P., IANNACCI and GARGUILO, JJ.
2013-556 D CR

The People of the State of New York, Respondent,

against

William Russell Dibello, Appellant.


Appeal from a judgment of the Justice Court of the Town of Milan, Dutchess County (Kenneth J. Kremenick, J.), rendered February 19, 2013. The judgment convicted defendant, after a nonjury trial, of speeding.

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Justice Court for a new trial.

On December 1, 2012, the People charged defendant, in a simplified traffic information, with speeding (Vehicle and Traffic Law § 1180 [b]), alleging that, on that date, at 3:47 p.m., defendant had operated his motor vehicle at a speed of 79 miles per hour in a 55 miles per hour speed zone. After a nonjury trial, defendant was convicted of the charge and sentenced to a fine. Defendant appeals, alleging the insufficiency of the trial evidence to establish the offense, judicial bias, and the Justice Court's failure to inform him of his right to counsel and to remain silent.

Defendant's claim that the trial evidence is legally insufficient to establish the elements of a violation of Vehicle and Traffic Law § 1180 (b) is not preserved for appellate review as no claim of legal insufficiency was interposed at trial (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, we find that the evidence, viewed in the light most favorable to the prosecution (People v Contes, 60 NY2d 620, 621 [1983]), was legally sufficient based on the officer's visual estimate that defendant was traveling 80 miles per hour in a 55 miles per hour speed zone (People v Knight, 72 NY2d 481, 488 [1988]; People v Olsen, 22 NY2d 230, 232 [1968]; People v Moirzadeh, 31 Misc 3d 145[A], 2011 NY Slip Op 50939[U], *1 [App Term, 9th & 10th Jud Dists 2011]), the proof that a calibrated radar device had measured defendant's speed at 79 miles per hour (see People v Dusing, 5 NY2d 126, 128 [1959]; People v Solanet, 44 Misc 3d 138[A], 2014 NY Slip Op 51253[U], *1 [App Term, 9th & 10th Jud Dists 2014]), and defendant's admission at trial that he had traveled at 79 miles per hour (People v Rankel, 44 Misc 3d 134[A], 2014 NY Slip Op 51160[U], *1 [App Term, 9th & 10th Jud Dists 2014]; see also People v Brachman, 42 Misc 3d 127[A], 2013 NY Slip Op 52143[U] [App Term, 9th & 10th Jud Dists 2013]).


However, the record is devoid of any indication that defendant received written notice of the right to counsel (People v Rellou, 31 Misc 3d 143[A], 2011 NY Slip Op 50874[U] [App [*2]Term, 9th & 10th Jud Dists 2011]) or that the trial court advised defendant of his rights, pursuant to CPL 170.10 (3) (a) and (4) (a), to the assistance of counsel and for an adjournment to obtain counsel (People v Schonfeld, 26 Misc 3d 74, 76 [App Term, 9th & 10th Jud Dists 2009]; People v Rios, 9 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2005]), which advisements were required because a conviction of the offense subjected defendant to the possibility of incarceration (see Vehicle and Traffic Law § 1180 [h] [1] [ii] [a person convicted of exceeding the speed limit by more than 10 miles per hour but not more than 30 miles per hour may be sentenced to up to 15 days' incarceration]; see also e.g. Argersinger v Hamlin, 407 US 25, 36 [1972]; Matter of Er-Mai Y., 29 AD3d 1013, 1015 [2006]; People v Raghubir, 39 Misc 3d 138[A], 2012 NY Slip Op 52476[U], *2 [App Term, 9th & 10th Jud Dists 2012]; People v Weinstock, 80 Misc 2d 510 [App Term, 9th & 10th Jud Dists 1974]; cf. People v Letterio, 16 NY2d 307 [1965]; People v Villegas, 2002 NY Slip Op 50647[U] [App Term, 9th & 10th Jud Dists 2002]). Thus, a new trial is required.

In light of the foregoing, we need not address defendant's remaining contentions.

Accordingly, the judgment of conviction is reversed and the matter is remitted to the Justice Court for a new trial.

Tolbert, J.P., Iannacci and Garguilo, JJ., concur.


Decision Date: February 17, 2015