People v. Boehme

• Decision Date: 20 December 1955
• Citation: 152 N.Y.S.2d 759,1 Misc.2d 629
• Parties: The PEOPLE of the State of New York v. John Arthur BOEHME, Jr., Defendant-Appellant.
• Court: New York County Court

Page 759

152 N.Y.S.2d 759

1 Misc.2d 629

The PEOPLE of the State of New York v. John Arthur BOEHME, Jr., Defendant-Appellant.

Nassau County Court.

Dec. 20, 1955.

Frank A. Gulotta, Dist. Atty., of Nassau County, Mineola, for the people.

Harold L. Haskin, Hempstead, for defendant-appellant.

LENT, Judge.

This is an appeal from a judgment of the Police Justice Court of the Incorporated Village of Garden City in this county, convicting the defendant of speeding under a local ordinance limiting the speed of motor vehicles to 30 miles an hour. After trial, the court found defendant guilty of speeding at 52 miles per hour, fined him $75 and revoked his license for a third offense of speeding within 18 months.

Despite a belief which stems from a reading of the entire record, that sufficient legal evidence was available to establish the guilt of the defendant beyond a reasonable doubt, this court is constrained to the view that the lower court erred both in receiving in evidence a so-called test certificate certifying to the substantial accuracy of the speedometer of the police car whose driver 'clocked' the defendant and in denying defendant's motion to dismiss at the end of the People's case.

Aside from the officer's statement that the defendant 'proceeded at an excessive rate of speed' (page 5, minutes of trial) and that when he first observed defendant 'he was racing away from a light' (page 19), which are conclusory allegations of both law and fact, the only testimony of defendant's actual or approximate speed given in terms of miles per hour is predicated upon the officer's testimony of his speedometer readings of 45 and 52 miles per hour while in pursuit of the defendant's car. To substantiate this testimony there was offered by the People and received by the court over the objection and exception of the defendant the so-called 'test certificate' above alluded to, as coming from the records of the Garden City Police Department. Such certificate is entitled 'Police Speedometer Test Certificate' and is issued by a garage certifying to a test of the police car speedometer. That this type of certificate is inadmissible in evidence where such is the only foundation laid for its reception seems well established, People v. Greenhouse, Co.Ct., 136 N.Y.S.2d 675; People v. Rice, 206 Misc. 999, 136 N.Y.S.2d 134; People v. Rothstein, 1 Misc.2d 516, 152 N.Y.S.2d 757.

The People contend that a contrary view was expressed in People v. Tyler, Sp.Sess., 109 N.Y.S.2d 756, and that in any event such certificate may be received as an entry made in the regular course of business under § 374-a, Civil Practice Act.

The court cannot agree with either of such contentions. In People v. Tyler, supra, the officer observed the speedometer test which was conducted as a routine test within the Police Department and the result of such test was visible to and known by him. In the instant case, the test was conducted by an outside agency engaged for that purpose. The test was not observed by the arresting officer nor was the person who conducted the test...