PEOPLE v. BESLI (2020)

ORDERED that the judgment of conviction is reversed, on the facts, the simplified traffic information is dismissed, and the fine, if paid, is remitted.

Defendant was charged in a simplified traffic information with using a mobile telephone while operating a motor vehicle (Vehicle and Traffic Law § 1225-c [2] [a]). Following a nonjury trial, at which both the Suffolk County police officer who had conducted the traffic stop and defendant testified, defendant was found guilty of the charge.

That the driver of a vehicle actually be engaged in a call is a necessary element of Vehicle and Traffic Law § 1225-c (2) (a) (see People v. Wells, 57 Misc 3d 21 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ). Here, the police officer's testimony that he observed defendant driving with a cell phone held to his left ear with his left hand gave rise to a presumption that defendant had been engaged in a call (see Vehicle and Traffic Law § 1225-c [2] [b]). Defendant rebutted that presumption with his mobile telephone bill, which supported his testimony that he had not been engaged in a call at or near the time when the officer observed defendant holding the phone to his ear while driving. Consequently, after examining all of the evidence adduced at trial and weighing the conflicting testimony, we find that the verdict convicting defendant of violating Vehicle and Traffic Law § 1225-c (2) (a) was, as defendant argues, against the weight of the evidence (see People v. Wells, 57 Misc 3d 21 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v. Ferguson, 56 Misc 3d 140[A], 2017 NY Slip Op 51097[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see generally People v. Danielson, 9 NY3d 342, 348 [2007]; People v. Bleakley, 69 NY2d 490, 495 [1987]).

Accordingly, the judgment of conviction is reversed and the simplified traffic information is dismissed.

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