People v. Orochena (Jose)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 20, 2017
• Docket: 2017 NYSlipOp 50556(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Jose Xavier Orochena, Appellant.

Jose Xavier Orochena, appellant pro se. McCullough, Goldberger & Staudt, LLP (Kevin E. Staudt, Esq.), for respondent.

Appeal from a judgment of the Justice Court of the Village of Mamaroneck, Westchester County (Daniel Gallagher, J.), rendered July 21, 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.

Following a nonjury trial, defendant was convicted of overtaking and passing a stopped school bus (Vehicle and Traffic Law § 1174 [a]). On appeal, defendant contends that the evidence was legally insufficient and that the verdict was against the weight of the evidence.

At trial, defendant testified that he had passed the stopped school bus only because a police officer had signaled him to pass the bus. The officer, however, denied waving defendant to pass the bus, and stated that he did not signal defendant to pull over and stop until defendant had already passed the bus. Viewing the evidence in the light most favorable to the People and indulging in all reasonable inferences in the People's favor (see People v Ford, 66 NY2d 428, 437 [1985]; People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of overtaking and passing a stopped school bus (Vehicle and Traffic Law § 1174 [a]). Moreover, 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 factfinder'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 find that the verdict convicting defendant of overtaking and passing a stopped school bus was not against the weight of the [*2]evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).

Accordingly, the judgment of conviction is affirmed.

Tolbert, J.P., Garguilo and Brands, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk
Decision Date: April 20, 2017