Two years after a Cohoes City Court judge first ruled that the Move Over Act uses an objective standard, a defendant tried a direct challenge to that rule at the appellate level — arguing that a driver's own sincere belief a lane change was unsafe should be a defense, however unreasonable that belief turned out to be. The Appellate Term didn't just reject the argument. It adopted the earlier case's reasoning as its own.

The Facts of the Case

Douglas G. Gonzalez was driving on a two-lane highway when he approached a police vehicle parked on the right shoulder with its emergency lights activated. He was in the right lane — the lane immediately adjacent to the shoulder — and never moved to the left lane. He was ticketed and convicted after a nonjury trial in Justice Court, Town of Monroe, of violating Vehicle and Traffic Law § 1144-a(a). Representing himself, he appealed.

The Argument on Appeal

Gonzalez argued that the statute should be read to excuse a driver who sincerely believes a lane change is unsafe, regardless of whether that belief was actually reasonable — meaning the decision of whether to comply with the Move Over Act would rest entirely with the driver's own judgment.

Why This Case Matters More Than a Repeat Ruling

Krahforst was a City Court decision — persuasive, but not binding on other courts. Gonzalez is different: it's the Appellate Term, sitting in appellate review of trial courts across its district, adopting that same reasoning as its own holding. That moves the objective-standard rule from "one judge's well-reasoned opinion" to controlling appellate authority.

The court also addressed something Gonzalez hadn't done at trial: he never moved for a trial order of dismissal, which meant his sufficiency challenge was technically unpreserved for appeal. The court noted that defect but went on to address the merits anyway — and rejected his argument on the merits as well, for good measure.

What This Means for a Defense

With the objective standard now settled at the appellate level, an effective defense has to engage with the facts on the ground rather than the driver's state of mind:

• Preserve the sufficiency challenge at trial. Gonzalez's argument almost didn't get considered at all because he skipped the procedural step of moving for a trial order of dismissal — a defense has to protect its record, not just its arguments.
• Focus on the traffic conditions the officer actually describes. Since the standard is objective, the strongest defense challenges the specifics of the officer's testimony about available space and obstructing traffic — not the driver's own account of how the moment felt.
• Don't rely on discomfort or caution alone. As with Krahforst and Kohl before it, a driver's subjective hesitation — however sincere — isn't enough without objective facts to back it up.

(Case facts and holding drawn from the published opinion in People v. Gonzalez, 62 Misc.3d 130(A) (2018).)