PEOPLE v. ALESSI (2022)

ORDERED that the judgments of conviction are affirmed.

Defendant was charged in two simplified traffic informations with, respectively, speeding (Vehicle and Traffic Law § 1180 [b]) and failure to properly maintain license plates (Vehicle and Traffic Law § 402 [1]).

Prior to taking trial testimony, defense counsel argued that the People had not provided the defense with a radar certificate. The court recommended that defense counsel make a written motion. However, defendant proceeded with the trial without making a formal written motion compelling discovery.

At a nonjury trial, Trooper Needham testified that he had been qualified to visually estimate the rate of vehicular speed within five miles per hour (mph) of the actual speed. He stated, among other things, that he visually estimated that defendant had been traveling 95 mph in a 55-mph zone and that he then used a radar device which measured defendant's speed at 96 mph. He tested the radar unit for accuracy and the test indicated that the radar unit was functioning properly at the time of the incident. Upon stopping defendant's vehicle, Trooper Needham noticed that it did not have a front license plate. When he asked defendant if he was aware of why he had been pulled over, defendant stated, “I'm sorry I was going fast. I was going about 90 miles per hour.” The District Court found defendant guilty of both speeding and failure to properly maintain a license plate, and imposed sentences.

The trooper's testimony that, as a qualified operator, he had used a radar device that was working properly to measure defendant's speed at 96 mph in a posted 55-mph zone sufficed independently to prove a violation of Vehicle and Traffic Law § 1180 (b) (see People v Dusing, 5 NY2d 126, 128 [1959]; People v Goess, 34 Misc 3d 152[A], 2012 NY Slip Op 50303[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v Susana, 29 Misc 3d 144[A], 2010 NY Slip Op 52218[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]).

Moreover, even if the proof of the calibration of the radar device was inadequate, a reading from an uncalibrated radar device may sufficiently corroborate a trooper's visual estimate (see People v Magri, 3 NY2d 562, 567 [1958]; People v Cervera, 40 Misc 3d 89, 92 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]), particularly if the visual estimate and the radar measurement are so similar as to render “any perceived deficiency in the radar evidence ․ of no consequence” (People v Knight, 72 NY2d 481, 488 [1988]; see also Goess, 2012 NY Slip Op 50303[U], *2; Susana, 2010 NY Slip Op 52218[U], *2; People v Ramaker, 9 Misc 3d 131[A], 2005 NY Slip Op 51592[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]). Thus, the trooper's testimony that he had received training to visually estimate the rate of speed of a vehicle at plus or minus five mph and that he had determined defendant's rate of speed to be 95 mph, which was close to the 96 mph rate that the radar unit had measured, was sufficient to prove a violation of Vehicle and Traffic Law § 1180 (b) (see Knight, 72 NY2d at 488). In any event, the officer's testimony that he had visually estimated the speed of defendant's vehicle, which exceeded the speed limit by more than 20 mph, was alone sufficient to establish defendant's guilt beyond a reasonable doubt (see People v Olsen, 22 NY2d 230, 232 [1968]).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.05 [2]; People v Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the verdict convicting defendant of speeding was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).

Defendant's remaining contentions are either without merit or unpreserved for appellate review.

Accordingly, the judgments of conviction are affirmed.

DRISCOLL, J.P., VOUTSINAS and WARHIT, JJ., concur.