Sample of one of my appellate brief's, part three.
The People are required to prove all of the above elements by proof beyond a reasonable doubt. People v. Baker, 2 Misc. 2d 600, 153 N.Y.S.2d 339 (1956).
What follows is a summary of how the Court’s direct questioning elicited the necessary elements of the violation in the case at bar.
I. The Court’s questioning of the People’s witness
· The Court inquired as to the training and qualifications of the witness, which elicited testimony necessary to establish element #5 – Specific Speed:
o The People’s case-in-chief begins with the Court asking the People’s sole witness Tuxedo Town Police Officer D’Elia “Can you tell us about your qualifications and tell us what happened on June 26, 2006?” (Transcript p. 3, lines 20-22)
o The Court: “You were trained in radar and Lidar?” (p.4, lines 6-7)
o The Court: “How long have you been a police officer in the Town of Tuxedo?” (p.4, lines 8-9)
· In an effort to allow the officer an opportunity to correct his contradictory testimony as to the date of the occurrence, the Court inquired as to the exact date of and time of the violation, which elicited testimony necessary to establish elements #1 – Identification and #2 – Operation:
o The Court: “That’s why I asked you if the it was June 20th or 26th? You have alleged [in the “long form” accusatory instrument] the date was June 20th, but it was the 26th?” (p.4, lines 16-18)
o The Court: “And about what time was this?” To this question the officer answered: “it was one – excuse me nine o’clock in the morning.” (p. 5, lines 4-6)
o The Court: “It was in the morning?” (p.5, line 7) To which the officer answers: “Yes” (p. 5 line 8)
· The Court inquired as to the location of the offense, which elicited testimony necessary to establish element #4 – Jurisdiction and element #3 – Vehicle:
o The Court: “You were going northbound?” (p.5, line 9)
o The Court: “When you saw him, the defendant, going northbound, what were the driving conditions?” (p.5, line 23)
o The Court: “And that [where you witnessed the offense] was here in Tuxedo?” (p.6, line 24)
o The Court: “In Orange County?” (p.7, line 2)
· The Court inquired as to the identification of the Appellant, which elicited testimony necessary to establish element #1 – Identification
o The Court: “Was it [the driver of the vehicle you stopped] the appellant who is seated here today, Mr. Berger?” (p. 6, lines 21-22)
2. The Court’s questioning of the Defendant
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