The People of the State of New York v. Kristine M. Cino, Defendant. (2026)

A bench trial was conducted in this matter on June 12, 2026. The People presented two witnesses, namely the arresting officer Jarod Barnard and Sergeant Nathan Parish. Both are members of the Webster Police Department. At the conclusion of the People's case, defense counsel made a motion for a trial order of dismissal relative to the two charges before the court, namely speeding going 54 in a 40 mile per hour zone and common law driving while intoxicated.

Speeding. As to the charge of speeding in violation of VTL § 1180 (d) (1),

"The People must present sufficient evidence concerning the sign, and the court cannot take judicial notice of the particulars of the sign, even if the court is personally familiar with it. 'The rebuttable presumptions created by statute in subdivisions (c) and (d) of section 1110 merely relieve the People of the need to produce certified copies of local ordinances, State regulations together with proof of proper filing and the need to show that the traffic device complied with the statute, rules or regulations. The statute still requires the People to produce sufficient evidence to permit a court to make a finding that the presumption in regard to compliance had been substantially met. In order to meet this burden the People must be able to produce the following proof as to the traffic device itself: (i) That it was in place at the time of the alleged violation; (ii) That it was sufficiently visible and legible to an ordinarily observant motorist; (iii) That there was no police officer directing traffic; (iv) The general location of the sign in respect to the intersection which it has been posted to control; (v) A description of the sign which should include its height above ground, size, shape, color of letters or markings and any other relevant information that distinguishes the sign. In addition to the foregoing the People must be prepared to offer evidence regarding the defendant's disobedience of the traffic sign, identify defendant as the driver at time of violation, identify the vehicle-color, make, type, license number and give such other evidence required by the statute alleged to have been violated.' " (Rose, New York Vehicle and Traffic Law § 34:8 at page 416-417 2nd Edition)

The court cannot just take judicial notice of a forty mile per hour speed limit (See People v. Matos, 28 AD3d 1120, 816 NYS2d 776 (4th Dept 2006) In this case the only testimony provided by the officer was in sum and substance that speeding signs were posted along Ridge Road. The law requires more. In fact, the court calls the parties attention to the case of People v. Mayoue, 50 Misc 2d 150, [1966, Mark, J.].¹ In dismissing the charge of speeding going 60 mph in a 40 mph zone the judge found that

" the only evidence offered by the prosecution to prove proper posting was the testimony of the arresting officer that he knew this was a 40 mile per hour speed zone because 'there was several speed zone signs in that area,' that these were the normal regulation size signs and that he saw these signs on the date of the alleged violation."

"The law has now evolved to a point that in a prosecution for speeding there is a presumption that a speed zone has been properly established."

"Even though the Court knows that the signs were properly posted, judicial notice cannot be taken of such posting"

The evidence presented herein is almost exactly the same. Therefore, the Trial Order of Dismissal relative to the charge of speeding is hereby granted.

Discovery. Defense counsel moved to preclude testimony regarding the administration of the standard field sobriety tests administered by the arresting officer to the defendant. That request is based on the cross-examination of the said officer. In sum and substance, defense counsel asked Officer Barnard if he reviewed anything before testifying. The officer answered that, among other things, he reviewed the field sobriety test card. However, it was determined that said document was not turned over to the defense prior to commencement of the trial. As a result, defense counsel moved for the testimony of the officer relative to the defendant's performance on said tests be precluded pursuant to CPL § 245.80 (1) (a) which states in pertinent part as follows: " When material or information is discoverable under this article but is disclosed belatedly, the court shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure." The People argue in their response that the note card "is not subject to the automatic discovery obligations under CPL 245.20 because it is simply a piece of training material used by the Officer in the regular course of his duties, not a document prepared or generated specifically for this case."

First of all, a review of the fill in the blanks Supporting Deposition/Bill of Particulars at number 5A entitled "Officer's Observation of the Defendant" under the section "Performance of Field Test(s)" it indicates "Note Card Attached". However, no such card is attached. It has been held that such card is "within the scope of disclosure that is mandated to be disclosed pursuant to CPL § 245.20 (1) (k)". (People v. Carmona, 79 Misc 3d 1236[A] 2023 NY Slip Op. 50817[U] *3) That subsection refers to any evidence or information that could be used to "impeach the credibility of a testifying prosecution witness".  ² Certainly, if defense counsel was in possession of said card, he could cross-examen the officer relative to adherence or lack thereof in following the procedure required in administering the said standardized field sobriety tests as set out on said card.

One of the possible sanctions set out in CPL 245.80 (2) is to "preclude or strike a witness's testimony or a portion of a witness's testimony," That would appear to be the appropriate remedy in this situation. Thus the defense motion to preclude all of the testimony relative to the administration of the three Standard Field Sobriety Tests, i.e. the horizontal gaze nystagmus (HGN) test, the heel to toe test and the one leg stand test is hereby precluded. Therefore the testimony relative to the administration of the said standardized field sobriety tests and the performance of the defendant thereon is hereby stricken from the record.

Common Law Driving While Intoxicated - Trial Order of Dismissal. The defense contends in its letter brief, that the People failed to prove beyond a reasonable doubt the defendant consumed alcohol to the extent that she was incapable, to a substantial extent, of employing physical and mental abilities that one is expected to possess in order to operate a vehicle as a reasonable and prudent person.³ That opinion is at least partially based on the officer's testimony, which established that the defendant had control of her vehicle. Specifically Officer Barnard stated that he followed the defendant on eastbound on Ridge Road in the Town of Webster on May 25, 2026 at approximately 1:00 A.M. he observed the defendant's vehicle move from side to side in its own lane, but did not go outside of the lane in either direction. That the defendant properly signaled her turn on to Shoecraft Road. That the defendant properly responded to the officer's request to pull over. That the defendant properly pulled off the road and properly positioned her car on the side of the road. That as to the admission by the defendant that she had three drinks, the defense points out that the admission lacked any time frame for the consumption of said drinks. Further the testimony as to the odor of alcohol is only proof of consumption rather than the amount consumed. He further argues that the admission of the officer that the standardized roadside tests were not performed in the required standardized fashion, would render the tests performed herein to be compromised. The testimony as to the defendant having bloodshot, glassy or watery eyes was explained as being the result of the defendant having been crying as the result of a recent abusive situation with her ex-boyfriend. The existence of which was conveyed to the officer upon his initial approach through the front passenger car window.

The People, in their letter brief, opposed the trial order of dismissal. The said brief argues that the People have met their burden of proving the defendant was guilty of common law driving while intoxicated. In so doing the prosecutor refers to the testimony of the officer relative to the standard indicia of intoxication exhibited by the defendant; that the defendant made an admission to having previously consumed three drinks; that she failed to satisfactorily perform the standardized roadside tests. In particular the reference is made to the 6 clues observed by the officer upon his administration of the HGN. Finally, it is argued that the court should take a negative inference from the defendant's refusal to take the chemical breath test.As to the motion for a trial order of dismissal, the court must view the evidence in the light most favorably to the People. On the other hand, it must be remembered that the court was able to view the initial approach of the defendant by the officer and the performance of the defendant on the tests by means of the body worn camera footage, which was entered into evidence by the stipulation of the attorneys, for the court to review at a later time. In addition, by virtue of the said body worn camera footage, the court was able to continue to observe the demeanor of the defendant during the arrest and subsequently during her time at the Webster Police Department.⁴ In previous times, the court would have to rely solely on the supporting deposition of the officer and the officer's testimony on how the defendant acted and performed those tests.⁵

In this case the defendant did advise the officer when she was initially stopped that she had something to drink that evening i.e. "three drinks" "Tito's". However, there was no testimony as to over what period of time they were consumed. In addition, Officer Barnard testified that upon ordering the defendant out of her vehicle the defendant exited the vehicle without a problem. That upon walking to the rear of her vehicle she did not stagger or sway. However, what is telling is the demeanor in general of the defendant. At one point in time, after she took the HGN test, she indicated that she was cold and requested that she be allowed to obtain her jacket. She then proceeded to the driver's side of her vehicle, entered the vehicle, without sitting down, retrieved her jacket, provided it to Sergeant Parrish, who wanted to check it for weapons. He returned the jacket to her, whereupon she put it on without any trouble and proceeded to walk back to the rear of her vehicle and continued to engage with Officer Barnard. These actions were all done without any physical difficulty. Upon completion of the roadside tests, the defendant is shown being arrested.

The video then takes us into the police station, where again we view the demeanor of the defendant, her speech in general and her interaction with the officers. In particular upon arriving she walked to the counter to check to see if her phone was in her bag or purse. She told the officer what she did and commented, in sum and substance, I assume that was alright to do. And it went on from there, including unemotional refusals to take the chemical test. Certainly there is no requirement that the court infer that such a refusal demonstrates a consciousness of guilt. In any event she eventually reminded the officers that they promised to drive her home. It is the opinion of this trier of fact, that if you did not know why she was arrested and that you were viewing body word camera footage of the defendant at the police department for the first time, you would be hard pressed to conclude that her actions and demeanor suggested that she was in an intoxicated or impaired state. There was no stumbling, crying or inability to speak clearly. One was definitely aware that she was angry at being detained, arrested and taken to the police department. However, she never lost control of herself. In other words she was in control of her emotions. As the saying goes "a picture is worth a thousand words".⁶ In this case the court cannot erase from its mind what was viewed on the body worn camera footage.

In opposing a motion for a trial order of dismissal, the People do not have to establish that the evidence presented establishes the guilt of defendant beyond a reasonable doubt. In order to successfully defeat such a motion the People need only establish that the evidence presented, if true, is legally sufficient. " ' Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent." (CPL § 70.10 (1). That is a much lower standard than proof beyond a reasonable doubt, as defined by CPL 70.20.

"In deciding a motion for a trial order of dismissal under CPL 290.10(1), the trial court must limit its review solely to legal sufficiency as defined in CPL 70.10(1). In this process the court must view the evidence in the light most favorable to the People (People v. Contes, 60 NY2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932) and all questions as to the quality or weight of the evidence should be deferred (People v. Sabella, 35 NY2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569)." (People v. Vasquez, 142 AD2d 698,700, 530 NY S.2d 601, 602 [1988])

The elements of common law driving while intoxicated are that the defendant operated a motor vehicle in an intoxicated condition. "A motion for a trial order of dismissal must be specific in citing the crime not proven and the elements of that crime that are not supported by the evidence. That motion must accept all facts proven by the prosecution as credible."⁷ In this case the defense alleges that the evidence presented does not establish that the defendant operated her vehicle in an intoxicated condition.

"A person is in an intoxicated condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to posses in order to operate a vehicle as a reasonable and prudent driver."⁸

The element of intoxication is exactly the element which the defense argues was not established by the evidence presented. However, the defense is not correct in arguing that the evidence is insufficient because that element was not proven beyond a reasonable doubt. As previously stated the People need only establish that the evidence was legally sufficient as defined by CPL § 70;10 (1).

The court must evaluate all the evidence presented in light of the legally sufficient standard. There is the testimony of the police officers as to the standard indicia of intoxication observed by her outward physical appearance,. to wit: slurred speech, blood shot watery eyes, impaired motor skills. Except for speeding, the defendant was not charged with any other moving violations, nor were any testified to by the arresting officer. There was the admission of consumption of alcohol but with out any context of a time frame. However, the most important evidence presented by the People was the body worn camera footage, which permitted the court view the defendant from the time she was first approached by the police to the time she was released from the police department. That particular piece of evidence was more than favorable to the defendant. Thus when the evidence is viewed together and in the light most favorable to the People, it does not establish by legally sufficient evidence that the defendant operated her vehicle in an intoxicated state.

CPL 290.10 (1) permits the court to dismiss any charge before it "upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense." That is the case herein. The motion for a trial order of dismissal as to the charge of common law driving while intoxicated and any lesser included offense is hereby granted. This constitutes the decision and order of this court.

Dated: September 4, 2026

Webster, New York

Hon. Thomas J. DiSalvo

Webster Town Justice

FOOTNOTES

1.   (It is interesting to note that this case was decided by the then Penfield Justice of the Peace and future Monroe County Court Judge and future New York State Supreme Court Justice, Hon. Donald J. Mark.)

2.   (See CPL § 245.20 (1) (k) (iv))

3.   (Subsequently the court will address that the standard in addressing a motion for a trial order of dismissal is legally sufficient evidence not proof beyond a reasonable doubt)

4.   (In the course of ruling on the motion for a trial order of dismissal the court viewed the body worn camera footage entered into evidence at both the probable cause hearing and the bench trial.)

5.   (Body worn camera footage which provides the viewer with the ability to observe the actual circumstances of the stop, roadside tests, arrest, and processing of the defendant, makes the trier of fact, in a sense, a witness after the fact. This a much different situation from one in which the trier of fact relies on verbal testimony, still photographs and diagrams.)

6.   (To quote that 20th Century philosopher and wordsmith, Yogi Berra "You can observe a lot by watching." Berra, The Yogi Book at 123 [Workman Publishing 2010])

7.   (Marrus, Practice Insights: Essential Elements of Trial Order of Dismissal, New York Criminal Statutes and Rules (2024 Graybook) (Matthew Bender) § 290.10)

8.   (CJI2d [NY] Driving While Intoxicated § 1192 [3])

Thomas J. DiSalvo, J.