People on Complaint of Igoe v. Nasella

• Decision Date: 31 August 1956
• Citation: 3 Misc.2d 418,155 N.Y.S.2d 463
• Parties: The PEOPLE of The State of New York on the Complaint of Thomas IGOE v. Fred J. NASELLA, Defendant. City Magistrate's Court of City of New York
• Court: New York Magistrate Court

Page 463

155 N.Y.S.2d 463

3 Misc.2d 418

The PEOPLE of The State of New York on the Complaint of Thomas IGOE v. Fred J. NASELLA, Defendant.

City Magistrate's Court of City of New York.

Aug. 31, 1956.

Louis Roos, Director of Legal Bureau Police Dept., New York City (Joseph T. McDonough, New York City, of counsel), for the People.

James C. Crane, Staten Island, for defendant.

POTTER, City Magistrate.

The defendant is charged with operating a motor vehicle along a portion of Drumgoole Boulevard on Staten Island, at an excessive rate of speed, namely, at 48 miles per hour in a traffic zone having a posted rate of speed of 40 miles per hour, in violation of section 60 of the Traffic Regulations of the City of New York. Speeding at the scene of the alleged infraction was checked by radar, and highway signs to that effect warned the motorist.

The defendant denies the charge, and impugns the worth of radar as a speed-checking agency. The People maintain that it is a reliable and accepted yardstick to measure the velocity of a moving vehicle. The defendant urges the contrary, and contends that to receive it as a true and proven instrument for determining speed would, in effect, raise its recordings to the position of demonstrative and conclusive proof, thereby foreclosing any possible defense to the speeding charge. The defendant is encouraged in his stand by the testimony of the People's expert witness on radar, namely, Dr. John M. Kopper of Johns Hopkins University. As the People's proponent on the efficacy of radar in speed checking, Dr. Kopper claimed the method to be accurate, but subject to an engineering tolerance of two miles per hour, plus or minus. ¹ Thus, the People concede that the use of the radar device carries with it a possible deviation.

The defendant seizes upon this possible imprecision and argues that by reason thereof, the People cannot sustain, beyond a reasonable doubt, the specific charge that he exceeded the legal rate of speed by eight miles per hour. If such precise and inflexible proof were essential to convict, then in view of the said possible variation, the court would need to go no further, and it would, instanter, grant the defendant's motions to dismiss. However, that is not the case.

Palpably, the defendant's contention is that even proof of a lesser prohibited rate of speed is proof of a different offense alien to the one charged in the complaint, thereby resulting in a fatal variance between allegation and proof. That argument lacks vigor. The gravamen of a speeding offense is always the operation of a motor vehicle at any rate of speed beyond that legally permitted at the given time and place.

Any competent and credible evidence of speed above the legal rate thereof would suffice to support a conviction. Thus, speed of 44 or 46 miles per hour or any speed exceeding the posted rate of 40 miles per hour, after allowing for the admitted engineering tolerance, would establish a case against the defendant.

Even were we to regard proof of such a lesser proscribed rate of speed as establishing a separate and distinct offense, nevertheless, it would properly fall within that class of infractions of the law known as 'included offenses'. Hence, the violation charged in the case at bar might well be treated in the same manner as an offense which admits of degrees, the greater charge including the lesser. 23 C.J.S., Criminal Law, § 1288, pp. 863-864; People v. Savarese, Co.Ct., 114 N.Y.S.2d 816, 834; State v. Dantonio, 18 N.J. 570, 581, 115 A.2d 35; People v. Grossman, 95 Cal.App.2d 293, 295, 212 P.2d 585; Rule 31(c), Federal Rules of Criminal Procedure for the United States District Courts, 18 U.S.C.A.

Nor does the fact that Dr. Kopper qualified his estimate of the possible tolerance with the words 'plus or minus', reasonably increase the doubt herein so as to warrant a dismissal of the complaint. The phrase 'plus or minus' or its equivalent 'more or less' is merely an expression of safety and precaution to indicate slight or inconsequential deviation from standard measurement, Capitol Wine & Spirit Corp. v. Berkshire, 2 Cir., 150 F.2d 619, 621.

We now come to the cardinal issue in the case, i. e., in the face of the possible engineering tolerance, was the radar device used in the instant case, a sufficiently competent and accurate method of measuring the defendant's alleged excessive rate of speed? The question, therefore, becomes one of the admission or exclusion of evidence.

The Court takes judicial notice that the word 'radar' is a convenient contraction of the phrase 'radio detection and ranging'. The essential procedure for setting up and testing radar equipment and its employment for measuring traffic speed have been considered by courts and textwriters. People v. Katz, 205 Misc. 522, 129 N.Y.S.2d 8; People v. Sarver, 205 Misc. 523, 129 N.Y.S.2d 9; People v. Sachs, 1 Misc.2d 148, 147 N.Y.S.2d 801; State v. Dantonio, supra; State v. Moffitt, 9 Terry, Del., 210, 100 A.2d 778, 779; Woodbridge, Radar in the Courts, 40 Val.Law Rev. 809, 814 (1955); Baer, Radar Goes To Court, 33 N.C. Law Rev. 355 (1955); as to the nature and use of speedmeters, vide Kopper's article, mentioned supra, footnote 1.

The radar equipment and police procedure in the case at bar were substantially the same as those considered in the cases and articles cited.

The People showed: The police unit consisting of three officers used a standard radar speedmeter comprised of three separate sections, namely, a transmitter--receiver transmitting and receiving micro waves, a clock or indicator registering the rate of speed, and a graphic recorder simultaneously making a written record of the speed indicated, all of these sections being interconnected by electric cables and powered by a six-volt battery. In addition to the radar instrument, the officers were provided with two patrol cars, one to carry the radar equipment and the other to intercept the speeding vehicle; the cars being in communication with each other by means of a radio-telephone. Finally, for the purpose of testing the speed-checking accuracy of the radar device before and after the day's operation, the police equipment included a calibrated speedometer affixed to a policy motorcycle.

The officers operating the radar and intercepting cars had each received more than perfunctory training and instruction in the use of the radar apparatus.

The intercepting or apprehending car was stationed 1,000 feet in front of the radar car, and so placed that it could proceed in the same direction as traffic under observation. The cars were in sight of each other. The day was clear and dry; the time the early afternoon.

The accuracy of the radar speedmeter was initially tested by running the police motorcycle through the zone to be serviced by the radar device. The readings on the radar speedmeter and the motorcycle's speedometer corresponded. The police unit then began its watch. Shortly thereafter, the defendant drove his station wagon through the so-called zone of influence, i.e., the range or area of the highway to which the radar apparatus had been made sensitive for speed-checking. No other car was abreast of or immediately behind the defendant's vehicle. The speed indicator and graphic recorder both registered the vehicle's rate of speed at 48 miles per hour in the 40 mile per hour zone. The graphic recorder was stopped at the time of the observation. The observer in the radar car inscribed on the recorder the time of the alleged infraction, a description of the vehicle and other germane information to substantiate the charge. Upon the People's offer, the chart of the recorder was received in evidence.

The officer in the radar car first noticed the defendant's station wagon when it was about 1,000 feet to the rear of the police vehicle. Such observation was made by means of the rear-view mirror on the radar car. The needle of the speed indicator moved when the defendant's vehicle reached a point of about 160 feet from the rear of the radar car. The officer therein communicated by radio-telephone, the details of the alleged violation to the apprehending officer ahead, and at the same time watched the defendant's vehicle until its interception. The officers made certain of the identity of the vehicle intercepted.

Upon completion of the day's mission, a second and closing test of the accuracy of the radar speedmeter was made by the police unit by comparing it once again with the calibrated speedometer on the motorcycle then run through the field of radar operation. Speedmeter and speedometer once more agreed. Though made by persons not technically skilled in the science of electronics, such accuracy tests were, nevertheless admissible in evidence. State v. Moffitt, supra, 100 A.2d at page 779; State v. Dantonio, 31 N.J.Super. 105, 110, 112, 105 A.2d 918, 922, affirmed 18 N.J. 570, 573-574, 115 A.2d 35.

In support of his prime defense that the radar device used was inaccurate, the defendant maintained that he had been traveling under 40 miles per hour. He also endeavored to show that the speedometer on his vehicle had been properly tested by introducing, in evidence, two bills bearing notations to said effect. He had not seen his speedometer checked. Nor had he called as witnesses those who tested it.

The scientific theory and process of checking speed by radar was explained by Dr. Kopper on behalf of the People. In substance, his explanation came to this: The transmitter-component of the instrument casts a beam in the path of the oncoming vehicle. The beam consists of microwaves at the frequency of 2455 megacycles per second. The vehicle becomes the beam's target. The beam strikes or illuminates the target, and in turn is reflected or echoed back to the receiver-part of the mechanism. The frequency of the waves so returning is different from the frequency of the waves originally transmitted. The closer the target approaches the radar...