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.
Case on Point
The Appellate Term rejected the subjective-belief argument outright, expressly adopting the reasoning of People v. Krahforst: that letting a driver's own conclusion control — no matter how unreasonable — would hand the driver a veto over the statute's central requirement and would make the law meaningless. The court held that an objective standard governs, and that the trooper's testimony here — that Gonzalez had "ample" opportunity to change lanes with no traffic obstructing him — was legally sufficient to sustain the conviction.
People v. Gonzalez, 62 Misc.3d 130(A) (2018)
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.
Key Takeaway: The "I sincerely believed it wasn't safe" defense to a Move Over Act ticket doesn't work, and it's now been rejected at both the trial and appellate level. What controls is whether a reasonably prudent driver, looking at the actual traffic conditions, would have found the lane change safe — not what the driver subjectively felt at the time.
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).)
Told the Officer You Didn't Think It Was Safe to Move Over?
New York's appellate courts have now confirmed, more than once, that sincere belief isn't the standard. Find out what the objective facts of your stop actually show.
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