People v. DePass
| Decision Date | 27 March 1995 |
| Citation | 165 Misc.2d 217,629 N.Y.S.2d 367 |
| Parties | PEOPLE of the State of New York v. Gary F. DEPASS, Defendant. |
| Court | New York Villiage Court |
Gary F. Depass appeared pro se.
Village Prosecutor Jeffrey Strauss, for plaintiff.
This case came on for trial on March 20, 1994 with the defendant charged with driving at a speed of 46 miles per hour on Glen Cove Avenue within the Village of Roslyn Harbor in violation of the posted speed limit of 30 miles per hour. The People relied for their proof of speed on the testimony of Sixth Precinct Police Officer Stanley Kerszko. Officer Kerszko's testimony was based upon an independent estimate of the speed of the defendant's vehicle together with his testimony that he used a laser gun device to obtain a reading of the speed of that vehicle.
The defendant testified that his speed was at exactly the speed limit, based on his consistent perusal of his speedometer. The Court is not willing to base a conviction for speeding on the basis of a dispute between an officer's visual speed estimate and a defendant's assertion that he read his speedometer. Accordingly, the issue squarely before the Court is whether or not laser speed readings are inherently reliable and if reliable, were properly taken by Officer Kerszko in this case.
In a previous decision by this Court in which laser evidence was the sole basis for determination of speed, the Court ruled that there had not yet been proof that the principles underlying laser speed determinations had seen general scientific acceptance and that there had been no ruling by this Court or by an appellate court in this state accepting laser speed readings as proof sufficient to support a conviction for driving at a rate of speed exceeding the existing speed limit. See People v. Michelle Foran, Docket No. 391/94. There had been such a ruling in the case of radar evidence of speeding. See People v. Magri, 3 N.Y.2d 562, 170 N.Y.S.2d 335, 147 N.E.2d 728 (1958).
Just recently the Court of Appeals reiterated the standard applicable in this state to the acceptance of scientific test evidence offered to support a criminal prosecution. In People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994), the Court held that in determining whether a proffered scientific test is properly admissible:
As an example the Court in Wesley pointed to the holding in Frye v. United States, 54 App.D.C. 46, 293 F. 1013, that systolic blood pressure [the basis for the so-called "lie detector"] was not proper evidence of a person's truthfulness.
Presumably as a result of this Court's Foran decision, the People presented testimony by two witnesses in addition to Police Officer Kerszko. They were Dr. Daniel Gezari, an astrophysicist employed at the Goddard Space Flight Center, and Police Officer Jesus Valdez of the Nassau County Police Department, Highway Patrol Division. Officer Valdez is the laser instructor for the Nassau County Police Department.
Dr. Gezari holds A.B. and M.S. degrees in physics from Cornell and NYU, respectively, and a Ph.D. in astronomy from Stony Brook. His areas of specialization have included observational infrared astronomy, electro-optical instrumentation and array detectors. He is the author of over 100 scientific publications. Based on Dr. Gezari's background, the Court, on motion of the People, accepted Dr. Gezari as an expert.
Dr. Gezari explained the principles utilized in the operation and use of the Laser Technology Inc. LTI 20-20 hand held instrument for determining speed of a moving vehicle. His testimony made clear that the device makes use of principles that have been well accepted in the scientific community for many years. In essence the device relies on the principle that the speed of light is known and constant. It further relies on the accepted understanding that a laser beam emitted from a laser generator is very narrow in width and will not spread significantly after emission, and is emitted in a narrow frequency band.
In addition to a laser emitter, the LTI 20-20 device also contains a photodiode, a clock and a computational device. In operation, when a short laser beam burst is emitted toward an object having a reflective surface, the time at which the reflected beam is received back at the photodiode is determined. Based upon the time between laser beam emission and return, and the known speed of light, the distance between the object and the laser device is determined by simple arithmetic calculation. If...
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...v. Williamson , 144 Idaho 597, 166 P.3d 387 (2007) ; Jury v. State Dept. , 114 Wash.App. 726, 60 P.3d 615 (2002) ; People v. DePass , 165 Misc.2d 217, 629 N.Y.S.2d 367 (1995) ; see also State v. de Macedo Soares , 2011 VT 56, 190 Vt. 549, 26 A.3d 37, ¶ 10 ; Williamson at 389-390 ; Columbus ......
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...144 Idaho 597, 166 P.3d 387 (2007); Jury v. State Dept., 114 Wash.App. 726, 60 P.3d 615 (2002). In addition, in People v. DePass, 165 Misc.2d 217, 629 N.Y.S.2d 367 (1995), a New York justice court concluded that the LTI 20-20 device was reliable after hearing testimony from an astrophysicis......
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