PEOPLE v. KIMMEL (2019)

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

Following a nonjury trial, defendant was convicted of misuse of dealer plates (Vehicle and Traffic Law § 415 [8]). To the extent that defendant's contention on appeal is that the evidence is legally insufficient to establish his guilt, this contention is not preserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). However, to the extent that defendant's contention is that the verdict of guilt was against the weight of the evidence, this contention needs no preservation and, thus, we must determine whether all of the elements of the offense were proved at the nonjury trial beyond a reasonable doubt (see People v Danielson, 9 NY3d 342 [2007]; People v Thiel, 134 AD3d 1237 [2015]). Upon a review of the record, we find that the verdict of guilt was against the weight of the evidence. The People failed to present any evidence establishing that defendant's use of the dealer plates was for an unauthorized use (see Vehicle and Traffic Law § 415 [8]; 15 NYCRR 78.21 [a] ).

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.