PEOPLE v. TOMPKINS

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. James R. TOMPKINS, Appellant.

Decided: October 22, 2004

Present:  McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ. James R. Tompkins, appellant pro se.

Appeal by defendant from a judgment of the Justice Court, Town of Philipstown, Putnam County (S. Tomann, J.), rendered October 7, 2003, convicting him of driving with excessively tinted side windows (Vehicle and Traffic Law § 375 [12-a] [b] ) and imposing sentence.

Judgment of conviction unanimously reversed on the law and as a matter of discretion in the interest of justice, accusatory instrument dismissed and fine, if paid, remitted.

Defendant was charged with driving a vehicle which had excessively tinted side windows (see Vehicle and Traffic Law § 375 [12-a] [b] ).  At trial, the officer testified that he estimated that the windows only permitted about 15% light transmittance.   Although such a percentage of light transmittance is below the legal threshold (id.), the officer did not establish that he possessed any experience in visually determining the amount of light transmitted through a window, or some other satisfactory reason or basis, such as a “tint-meter,” for his opinion.   As a result, the evidence was legally insufficient to establish the defendant's guilt beyond a reasonable doubt (cf. People v. Olsen, 22 N.Y.2d 230, 292 N.Y.S.2d 420, 239 N.E.2d 354 [1968] ).   Although defendant did not properly preserve his objection to the sufficiency of the evidence, we nevertheless review it in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ).

Consequently, we do not pass on defendant's remaining contentions.