People v. Crant

• Decision Date: 30 March 1964
• Citation: 42 Misc.2d 350,248 N.Y.S.2d 310
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Henry CRANT, Defendant.
• Court: New York City Court

Page 310

248 N.Y.S.2d 310

42 Misc.2d 350

The PEOPLE of the State of New York, Plaintiff, v. Henry CRANT, Defendant.

City Court of New Rochelle.

March 30, 1964.

Murray C. Fuerst, Corp. Counsel (Anthony A. Moley, New Rochelle, of counsel), for the People.

Henry Crant, pro se.

FRANK H. CONNELLY, Acting City Judge.

The defendant is accused of violating a local ordinance prescribing a vehicular speed limit of 25 miles per hour. Upon the trial, the prosecuting officer testified in substance that he followed the defendant's vehicle in a police car and noted that his own speedometer read 42 m. p. h., while a constant distance was maintained between the two cars.

Proof of speeding, based solely upon the reading of an untested speedometer has been held to be legally insufficient (People v. Heyser, 2 N.Y.2d 390, 161 N.Y.S.2d 36, 141 N.E.2d 553). To establish the accuracy of the speedometer, the People offered in evidence a card purporting to show the result of a calibration test made on the day of the alleged offense. One side of the card reads:

Bureau of Police

Department of Public Safety

City of New Rochelle, N. Y.

Speedometer Test

We have this day tested Speedometer

Car No. 17 and

found it to be

Dated 11/26/63

(Over)

Signed Ptl. James Bartnett

43

The reverse side reads:

Speed: 15 25 35 40 50 60

Error: 0 0 0 0 -1 -1

The prosecuting officer, who was the only witness called, testified that he neither saw the test performed nor knew anything of the testing method. No evidence was offered concerning the qualifications of the tester and, for all that appears, the testing method may have been devoid of scientific validity.

Proof was given that the test card had been prepared and kept in the normal routine of the Police Department, and the procedural requirements of CPLR Rule 4518 were generally satisfied. Because of doubt as to the essential competency of the proffered exhibit, the Court reserved decision upon its admissibility.

The exhibit actually shows nothing beyond the fact that the named patrolman and one or more unidentified other persons, referred to as 'we', subjected the speedometer to some procedure which they called a test, and that the speedometer thus 'tested', showed insignificant deviations from perfection.

If the tester had taken the stand as an expert witness, it is clear that he could not have competently testified to his bald conclusion that the speedometer was substantially accurate without showing his qualifications to express such a judgment (32 C.J.S. Evidence §§ 456-457, pp. 94-95) and without describing and justifying, at least in summary fashion, the process by which he arrived at such judgment. (Weibert v. Hanan, 202 N.Y. 328, 331, 95 N.E. 688, 689; People v. Samuels, 302 N.Y. 163, 172, 96 N.E.2d 757, 762).

Incompetent evidence does not become competent through its inclusion in a 'shopbook' record (Bothner v. Keegan, 275 App.Div. 470, 89 N.Y.S.2d 288; Matter of Coddington's Will, 307 N.Y. 181, 195, 120 N.E.2d 777, 784).

Furthermore, the very format of the card indicates that it was made up and kept primarily, if not exclusively, for subsequent use as an exhibit. It does not bear the earmarks of a garage-keeper's maintenance record.

The proffered exhibit is in the category of the railroad engineer's accident report in Palmer v. Hoffman, 318 U.S. 109, p. 114, 63 S.Ct. 477, 481, 87 L.Ed. 645, concerning which the court said:

'Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.'

The United States Supreme Court noted that if such records were to be received as a substitute for testimony, '[w]e would then have a real perversion of a rule designed to facilitate admission of records which experience has shown to be quite trustworthy' (ibid., 318 U.S. p. 113, 63 S.Ct. p. 480, 85 L.Ed. 645). The statutory 'shopbook' rule was designed to permit incidental testimonial use of records which are made and kept primarily for non-testimonial purposes, rather than the other way round.

One may perhaps rationalize a distinction between the accident reports of a private corporation and the crime date of a police department by suggesting that the recording and furnishing of evidence is a principal part of the 'business' of law enforcement. But that distinction, if recognized, would accomplish too much and would dispense with oral testimony wherever a policeman who witnessed the commission of a crime kept a good note book.

A 'shopbook' record, compiled for primary use as an exhibit, whether by a merchant or by a policeman, is inadmissible. Although no reported New York decision appears to have dealt with the topic, the federal counterpart of the New York statute, viz., 28 U.S.C. § 1732, is construed to bar the admission of such exhibits and, lacking other authority, the federal rule will be here followed.

In Yung Jin Teung v. Dulles (C.A.2; 1956), 229 F.2d 244, the Government offered as 'shopbook' records certain investigatory data prepared by the immigration authorities for use in a deportation case. Concerning these records, the Court of Appeals said (229 F.2d p. 247): 'Nor are they admissible under 28 U.S.C.A. § 1732 as records made in the regular course of business as they appear to be reports made for the specific purpose of this litigation such as were held inadmissible in Palmer v. Hoffman.' In United States v. Ware (C.A.7; 1957), 247 F.2d 698, p. 700, the memoranda of narcotics agents were excluded with a similar observation: 'They are also subject to the objection that such utility as they possess relates primarily to prosecution of suspected law breakers, and only incidentally to the systematic conduct of the police business. ...