PEOPLE v. BOGOMOLSKY

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Nick BOGOMOLSKY, Appellant.

Decided: November 27, 2006

Present:  PESCE, P.J., WESTON PATTERSON and BELEN, JJ. Jon A. Lefkowitz, Brooklyn, for appellant. Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Karol B. Mangum of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (James M. Burke, J.), rendered March 23, 2005.   The judgment convicted defendant, after a nonjury trial, of leaving the scene of an incident without reporting.

Judgment of conviction affirmed.

 Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we determine that it was legally sufficient to establish defendant's guilt of leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600[2][a] ).   The proof in the case at bar amply demonstrated that defendant knew or had, as provided in the statute, “cause to know that personal injury ha[d] been caused ․ due to an incident involving” (Vehicle and Traffic Law § 600[2][a] ) the bus he was operating.   Defendant stopped the bus, apologized to the complainant, heard her request for an ambulance, and left the scene without exhibiting the required documents and without providing the required information.   We note that it is not necessary for the incident to have caused “physical injury,” in the sense of “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ), but simply “personal injury” (Vehicle and Traffic Law § 600[2][a] ).   Defendant was not justified, under the circumstances, in waiting until found by the police, two weeks after the incident, to make an assertion that he had not heard or felt any contact between his bus and complainant.

 We are also of the view that the verdict was not against the weight of the evidence (see CPL 470.15[5] ).   While the proof of guilt adduced at trial may not have been totally free of inconsistencies, it did reflect, contrary to the position taken herein by our dissenting colleague, a lack of fabrication.   An independent, adult eyewitness testified for the People that complainant got up and tried to follow the bus but “couldn't do it.”   While complainant may at one point have indicated that the driver's side of the bus hit her, she appears to have corrected herself by subsequently saying that she was hit “where the door is,” which would be on the opposite side.   Resolution of matters of credibility and the weight to be accorded the evidence are questions primarily to be determined by the trier of fact which saw and heard the witnesses (People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902, 2006 N.Y. Slip Op. 08640, 2006 WL 3359093 [2006] ) and we find no basis to disturb such determination.

The remaining contentions raised by defendant upon this appeal are unpreserved and/or similarly lacking in merit.

I am of the view that the verdict was against the weight of the evidence (see CPL 470.15[5];  People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Complainant testified for the People that a school bus being driven by defendant struck her, a pedestrian, causing her to fall.   Defendant driver of the bus and a passenger, Ms. Taub, testified to the effect that the bus driver never struck complainant, but she nevertheless sat down in the street, set her coffee cup down and began shouting.   Defendant stopped the bus and, after taking issue with complainant concerning whether the bus had struck her, left the scene without giving any identification and information (see Vehicle and Traffic Law § 600[2][a] ).   Complainant was taken by ambulance to a hospital and released.   No swelling was detected;  x-rays showed no apparent fracture or dislocation, and soft tissue was unremarkable.   Complainant's range of motion was found to be normal.   Approximately four months later, complainant underwent an operation on her shoulder.

I am cognizant that the determination of credibility by a trier of fact should be given great weight on appeal (People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500 [1974] ).   Nonetheless, the appellate court must exercise its power to review the facts of the case and, if appropriate, decide that the verdict is against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672, supra ).   Upon the record before us, the finding that defendant either knew or had cause to know that personal injury had been caused to complainant due to the incident is unsupported by the weight of the evidence (see Vehicle and Traffic Law § 600[2][a] ).   Defendant's version of the event was more credible than complainant's.   Furthermore, the testimony of the People's witness, Mr. Davalos, showed a lack of memory with respect to detail, e.g., with respect to whether complainant had a cup of coffee and a cell phone, and did not specify that he actually saw the incident happen (he stated that he heard a scream and saw the lady on the “floor” next to the bus).   In contrast, the testimony of defendant's independent witness, Ms. Taub, showed that she saw the entire incident as it happened.   Moreover, the medical evidence from the physicians established that the injuries for which complainant was subsequently operated on, did not result from the alleged incident.   The weight of the proffered evidence indicated that complainant's alleged injuries did not result from a collision with defendant's school bus and, under the circumstances, the verdict of guilty should be set aside (see People v. Levy, 157 Misc.2d 941, 944-945, 599 N.Y.S.2d 898 [1993] ).

PESCE, P.J., and BELEN, J., concur. WESTON PATTERSON, J., dissents in a separate memorandum.