The People of the State of New York, Respondent, v. Bryan Gershen, Appellant. (2026)

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial (John Andrew Kay, J.H.O.), at which both a state trooper and defendant testified, defendant was convicted of speeding (Vehicle and Traffic Law § 1180 [d]) for driving at a speed of 81 miles per hour (mph) in a 55 mph zone. On appeal, defendant contends that the verdict was against the weight of the evidence and that the court erred in refusing to admit his exculpatory evidence.

Upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one appellate review of adverse factual findings" (People v Danielson, 9 NY3d 342, 348 [2007]). "Necessarily, in conducting its weight of the evidence review, a court must consider the elements of the [offense], for even if the prosecution's witnesses were credible their testimony must prove the elements of the [offense] beyond a reasonable doubt" (Danielson, 9 NY3d at 349). If a finding in favor of the defendant "would not have been unreasonable" (People v Curry, 112 AD3d 843, 844 [2013]), this court "must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (Danielson, 9 NY3d at 348). Nonetheless, great deference is accorded to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). If it appears that the factfinder failed to give the evidence the weight it should be accorded, this court may reverse the judgment of conviction and dismiss the accusatory instrument (see CPL 470.20 [5]; People v Romero, 7 NY3d 633, 643-644 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]). If it appears that the trier of fact had given the evidence the weight it should be accorded, then the verdict should not be disturbed (see Danielson, 9 NY3d 342).

At the trial, the trooper testified that he is qualified to operate a radar device and that, after he had tested the radar and found it to be working properly, he used it to measure defendant's vehicle's speed. The radar revealed that defendant's vehicle was traveling at a speed of 81 mph. Further, defendant testified that the road he was traveling on had a 55 mph speed limit. This testimony independently sufficed to prove a violation of Vehicle and Traffic Law § 1180 (d) (see People v Dusing, 5 NY2d 126, 128 [1959]; People v Alessi, 75 Misc 3d 132[A], 2022 NY Slip Op 50446[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Gold, 42 Misc 3d 139[A], 2014 NY Slip Op 50173[U] [App Term, 9th & 10th Jud Dists 2014]). Calibration records are not needed to establish the accuracy of a radar device (see Gold, 2014 NY Slip Op 50173[U]; 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 accuracy 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]; Alessi, 2022 NY Slip Op 50446[U]; 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 Goess, 2012 NY Slip Op 50303[U], Susana, 2010 NY Slip Op 52218[U]). Thus, the trooper's testimony that he had received training to visually estimate the rate of speed of a vehicle at plus or minus two mph and that he had determined defendant's rate of speed to be 80 mph, which was close to the 81 mph rate that the radar unit had measured, was sufficient to prove a violation of Vehicle and Traffic Law § 1180 (d) (see Knight, 72 NY2d at 488; Alessi, 2022 NY Slip Op 50446[U]; People v Jateen, 74 Misc 3d 134[A], 2022 NY Slip Op 50280[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). In any event, the trooper's testimony that he had visually estimated the speed of defendant's vehicle, which exceeded the speed limit by 25 mph, was alone sufficient to establish defendant's guilt beyond a reasonable doubt (see People v Olsen, 22 NY2d 230, 232 [1968]; Alessi, 2022 NY Slip Op 50446[U]; Jateen, 2022 NY Slip Op 50280[U]).

Since defendant's testimony directly contradicted the trooper's, the trial court had to make a credibility determination (see Lane, 7 NY3d at 890; Romero, 7 NY3d at 644-645; People v Ermmarino, 60 Misc 3d 50, 56 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]), which it did, finding the trooper's testimony "reliable" and "unwavering" and defendant's testimony "not . . . credible." Upon an independent review of defendant's testimony and the arguments he raises on appeal, which are identical to those he raised before the trial court, we find that defendant has not demonstrated on appeal why the trial court's credibility determination should be disturbed (see People v Sweeney, 66 Misc 3d 12, 15 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Asvazadourain, 59 Misc 3d 137[A], 2018 NY Slip Op 50567[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Consequently, the verdict convicting defendant of speeding was not against the weight of the evidence (see Romero, 7 NY3d at 643-646; Alessi, 2022 NY Slip Op 50446[U]; Jateen, 2022 NY Slip Op 50280[U]).

Trial courts are accorded wide discretion in making evidentiary rulings and, absent an improvident exercise of discretion, those rulings, which are entitled to deference, should not be disturbed on appeal (see People v Grayevsky, 83 Misc 3d 133[A], 2024 NY Slip Op 51176[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]; People v Hinklein, 81 Misc 3d 135[A], 2023 NY Slip Op 51392[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2023] [finding that the District Court did not err in precluding the Google Maps printouts proffered by the defendant]; People v Matthews, 71 Misc 3d 126[A], 2021 NY Slip Op 50223[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; Sweeney, 66 Misc 3d 12). A court must "weigh the probative value of [the] evidence against the possibility that it would confuse the main issue and mislead . . . or create substantial danger of undue prejudice to one of the parties" (People v Corby, 6 NY3d 231, 234 [2005] [internal quotation marks omitted]; see People v Petty, 7 NY3d 277, 286 [2006]; People v Davis, 43 NY2d 17, 27 [1977]; Matthews, 2021 NY Slip Op 50223[U]). In view of the foregoing, we find that it was not an improvident exercise of discretion for the trial court to have excluded from evidence defendant's proffered material, which, contrary to defendant's claim, was not exculpatory (see Grayevsky, 2024 NY Slip Op 51176[U]; Hinklein, 2023 NY Slip Op 51392[U]).

We note that, in any event, the trial court not only allowed the pro se defendant to refer to his proffered evidence while cross-examining the trooper, it also allowed him to testify about the contents of that evidence. Thus, regardless of the fact that the court did not admit the proffered material into evidence, this material was duplicative of defendant's testimony and was considered by the trial court. Moreover, even if this material had been allowed into evidence, there still was the same credibility determination for the court to make, i.e., which version of events to believe, and the court made that credibility determination in favor of the trooper, whose version it found to be more believable.

Accordingly, the judgment of conviction is affirmed.

WALSH, J.P., VAZQUEZ-DOLES and LICCIONE, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: July 23, 2026