PEOPLE v. WHITNEY (2020)

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

Following a nonjury trial, defendant was convicted of driving across hazardous roadway markings (Vehicle and Traffic Law § 1128 [d]). Defendant appeals, contending, among other things, that the conviction was not supported by legally sufficient evidence.

Vehicle and Traffic Law § 1128 (d) provides, “When official markings are in place indicating those portions of any roadway where crossing such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive across such markings.” Here, while the People proffered testimony that defendant, while operating his motor vehicle on a highway, crossed over solid white pavement markings that separated his lane of traffic from an exit ramp of the highway, the People failed to establish that the crossing of the pavement markings at issue were inherently unlawful and, thus, that those lines represent markings which indicate portions of a roadway where crossing them would be especially hazardous in violation of Vehicle and Traffic Law § 1128 (d) (see People v. Hylton, 48 Misc 3d 130[A], 2015 NY Slip Op 51028[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v. Hirsch, 29 Misc 3d 144[A], 2010 NY Slip Op 52215[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; People v. Sykes, 27 Misc 3d 133[A], 2010 NY Slip Op 50703[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; People v. Shulman, 14 Misc 3d 129[A], 2006 NY Slip Op 52508[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006] ). Consequently, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 NY2d 620, 621 [1983]), we find that the evidence adduced at trial was legally insufficient to establish defendant's guilt, beyond a reasonable doubt, of violating Vehicle and Traffic Law § 1128 (d).

In view of the foregoing, we need not pass upon the remaining issues raised in defendant's brief on appeal.

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

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