PEOPLE v. BEY (2008)

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Kenneth C. Holder, J.), rendered January 19, 2007.   The judgment convicted defendant, after a nonjury trial, of riding a bicycle on a sidewalk where there was no sign posted permitting same.

Judgment of conviction modified on the law by vacating so much of the sentence as imposed a mandatory surcharge fee upon defendant;  as so modified, affirmed.

After a nonjury trial, defendant was convicted of riding a bicycle on a sidewalk where there was no sign posted permitting same (Administrative Code of City of New York § 19-176[b];  see New York City Traffic Rules and Regulations [34 RCNY] § 4-07[c][3][I] ).

 Defendant's contention that his constitutional right to a speedy trial was violated (see CPL 30.20) was not preserved for appellate review since it was not made in writing and upon reasonable notice to the People (CPL 170.45, 210.45[1];  see People v. Lawrence, 64 N.Y.2d 200, 485 N.Y.S.2d 233, 474 N.E.2d 593 [1984];  People v. Jordan, 62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145 [1984] ).   In any event, were we to apply the factors set forth in People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975], we would conclude that the delay in the instant matter was not violative of defendant's constitutional right to a speedy trial.

 Defendant's contention that the evidence adduced at trial was legally insufficient to prove his guilt is similarly unpreserved for appellate review (see People v. Hines, 97 N.Y.2d 56, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001] ).   In any event, viewing the evidence in a light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ).

Defendant's contention that the statute which he was convicted of violating was unconstitutional and void for vagueness was also not preserved for appellate review (People v. Graham, 93 N.Y.2d 934, 693 N.Y.S.2d 502, 715 N.E.2d 504 [1999];  People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383 [1986];  People v. Adams, 50 A.D.3d 433, 855 N.Y.S.2d 481 [2008] ).

 However, the court erred in imposing a mandatory surcharge fee of $95 upon defendant.   A violation of Administrative Code of the City of New York § 19-176(b) is a traffic infraction, as that subdivision merely provides that a person who violates it shall be fined not more than one hundred dollars.   Vehicle and Traffic Law § 1809, which governs mandatory surcharges for traffic infractions, specifically excludes traffic infractions involving bicyclists.   Thus, the court had no authority to impose a mandatory surcharge upon defendant, and the judgment is modified by vacating so much of the sentence as imposed same.

WESTON PATTERSON, J.P., RIOS and STEINHARDT, JJ., concur.