People v. Le Bous

• Decision Date: 02 May 1961
• Citation: 29 Misc.2d 850,215 N.Y.S.2d 829
• Parties: PEOPLE of the State of New, York v. Ferris B. LE BOUS.
• Court: New York City Court

Page 829

215 N.Y.S.2d 829

29 Misc.2d 850

PEOPLE of the State of New, York v. Ferris B. LE BOUS.

City Court of City of Binghamton.

May 2, 1961.

Herbert A. Kline, Asst. Dist. Atty., Binghamton, for the people.

Conway M. Couse, Johnson City, for defendant.

JOSEPH W. ESWORTHY, Judge.

Defendant was tried before this Court without a jury on April 15, 1961 for the violation of Section 1180, Subdivision 1 of the Vehicle and Traffic Law of the State of New York. The information alleges that on March 14, 1961 the Defendant, while operating a 1960 Oldsmobile upon the Vestal Parkway, did 'operate said vehicle at a speed greater than was reasonably prudent, in excess of 30 miles per hour, specifically 40 miles per hour, under the conditions, existing which was wet and slippery pavement resulting in his being unable to stop his vehicle without skidding and colliding with another vehicle stopping in line of traffic for red traffic signal at Vestal Parkway in South Washington Street.'

At the close of the Defendant's case, Defendant's counsel moved for dismissal of the information upon the grounds the People had failed in their proof in that the information was sworn to on direct knowledge and was not upon information and belief. In particular, Defendant's counsel objected to that part of the information which read 'specifically 40 miles per hour.' Decision on this motion was reserved and consequently on the whole case.

We will dispose of the motion first as Defendant's objection is novel and the reverse of the usual objection.

We note the same information often serves as the basis for the issuance of the warrant upon which the Defendant is arrested and as the pleading on which the Defendant is thereafter tried. Here the Defendant was not arrested and instead was issued a uniform traffic ticket. The trial Court acquired jurisdiction of the person of the Defendant by his appearance in response to said invitation, voluntarily, without a warrant of arrest. Thus, the information served only the function of a pleading. People v. Belcher, 302 N.Y. 529, 99 N.E.2d 874.

Nevertheless, the information although used solely as a pleading should be based on competent legal evidence. People v. James, 4 N.Y.2d 482, 176 N.Y.S.2d 323.

Here the facts stated by the officer in the information were founded in part upon his personal observation for indeed he witnessed the entire accident and thus competent to testify as a witness upon the trial. As to the inclusion of the words 'specifically 40 miles per hour' the Court considers them surplusage for an information charging a traffic infraction need not be as precise as one charging a misdemeanor. People v. Skolnick, 200 Misc . 389, 108 N.Y.S.2d 857.

The Defendant's motion is denied for the information is sufficient in and of itself to establish prima facie the essential elements of the violation charged against Defendant.

The proof on behalf of the People consisted of the testimony of Officer Johnson. People's Exhibit 1 was received in evidence without objection and this exhibit clearly shows, as the officer testified, that he was in a position and did observe the Defendant's car from the time it proceeded under the Pennsylvania Avenue overpass until after the accident. The officer testified that the accident happened at approximately 6:58 P.M., and that the weather conditions were such that it was cold and cloudy; the streets were wet--for it had rained, and that there was a residue of salt from the last application on the roadway which left the same (when wet) slippery. Further the officer testified that from where Defendant was first observed coming under the overpass to the Washington Street intersection was approximately 400 feet in distance and that the point of impact was some 220 feet from the underpass; that the Defendant started to skid approximately 20 feet from the vehicle he collided with--which was in a line of traffic waiting for a red light signal at the intersection to change; that as the Defendant's vehicle went into a skid it tipped on its side and skidded into the other vehicle involved and after impact was turned some 90~ from normal traffic direction. Further, the officer stated that traffic conditions were medium, and that he asked Defendant how fast he was going--not once but twice, and that he replied 40 miles per hour. The officer further testified that this was in a thirty mile speed limit zone and that it was his opinion based upon his experience (in checking against calibrated speedometers) that he could estimate speed within plus or minus 4 miles per hour and that the Defendant's speed as he came out of the underpass was approximately 50 miles per hour and at the point of collision 40 miles per hour. He further indicated this expert opinion under the conditions and with regard to the actual and potential hazards at the time he first observed Defendant--his speed should have been 30 miles per hour and at the time of impact Defendant should be nearly stopped.

The expertise of the officer in judging speed or his qualifications or experience as an officer to judge speed were not in question.

The Defendant's proof consisted in testimony by the Defendant himself who stated he was proceeding to Binghamton from Vestal following a Sheriff's vehicle with a speedometer mounted on its roof, which sheriff's vehicle turned off at the Pennsylvania Avenue interchange. He stated that at the Pennsylvania Avenue underpass, his speed was 20 to 30 miles...