People v. Mendelson (Russell)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: August 10, 2017
• Docket: 2017 NYSlipOp 51010(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Russell Mendelson, Appellant.

Russell Mendelson, appellant pro se. Great Neck Estates Village Prosecutor (Gary P. Muhlstock, Esq.), for respondent.

Appeal from a judgment of the Justice Court of the Village of Great Neck Estates, Nassau County (Harry H. Burstein, J.), rendered November 24, 2015. The judgment convicted defendant, after a nonjury trial, of overtaking and passing a stopped school bus.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with overtaking and passing a stopped school bus in violation of Vehicle and Traffic Law § 1174 (a). At a nonjury trial, a police officer testified that he had observed a motor vehicle marked "student driver" pass a stopped school bus, which had its lights and stop signs activated, while children were boarding the bus. The officer further testified that defendant, who had a learner's permit (see Vehicle and Traffic Law § 501 [5]), had been operating the vehicle with a driving instructor as a passenger at the time the officer had stopped the vehicle. Defendant claimed that neither he nor the instructor had seen a stopped school bus with flashing lights before the officer had stopped the vehicle. During the trial, defendant sought to admit various documents, including a letter from defendant's driving instructor, who had died prior to trial, which indicated that there had been no flashing lights on the bus requiring defendant's vehicle to stop. However, the court would not admit these documents into evidence. Following the trial, the Justice Court found defendant guilty of overtaking and passing a stopped school bus.

Defendant contends that the verdict was against the weight of the evidence. Upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the verdict of the Justice Court was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643—646 [2006]). We note that, as the letter was being offered for the [*2]truth of the matters asserted therein, it was hearsay and properly excluded since defendant failed to demonstrate any basis for its admissibility.

Accordingly, the judgment of conviction is affirmed.

BRANDS, J.P., TOLBERT and GARGUILO, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 10, 2017