People v. DePass

CourtNew York Villiage Court
Citation165 Misc.2d 217,629 N.Y.S.2d 367
Decision Date27 March 1995
PartiesPEOPLE of the State of New York v. Gary F. DEPASS, Defendant.

Page 367

629 N.Y.S.2d 367
165 Misc.2d 217
PEOPLE of the State of New York
v.
Gary F. DEPASS, Defendant.
Village Court of Roslyn Harbor,
Nassau County.
March 27, 1995.

Gary F. Depass appeared pro se.

Village Prosecutor Jeffrey Strauss, for plaintiff.

DAVID H. PFEFFER, Village Justice.

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[165 Misc.2d 218] 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:

"attention must focus on the acceptance of such evidence as reliable by the relevant scientific community. The long-recognized rule ... is that expert testimony based on scientific principles or procedures is admissible only after a principle or procedure

Page 368

has 'gained general acceptance' in its specified field."

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 [165 Misc.2d 219] 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...

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5 practice notes
  • City of Brookpark v. Rodojev, No. 106313
    • United States
    • United States Court of Appeals (Ohio)
    • 13 Diciembre 2018
    ...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 ......
  • People v. Mann, No. 2-08-1006.
    • United States
    • United States Appellate Court of Illinois
    • 15 Enero 2010
    ...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......
  • Izer v. State, No. A98A2475.
    • United States
    • United States Court of Appeals (Georgia)
    • 5 Febrero 1999
    ...proved the reliability and acceptance within scientific community of laser gun as accurate means of measuring speed); People v. DePass, 629 N.Y.S.2d 367, 165 Misc.2d 217 (1995) (use of laser device was based upon well-accepted scientific principles and could be accepted in court as accurate......
  • People v. Solomon
    • United States
    • New York County Court
    • 22 Enero 2013
    ...to prove a conviction; and the lower courts are divided as to that. Compare, e.g., People v. Clemens, 168 Misc.2d 54, People v. DePass, 165 Misc.2d 217, 629 N.Y.S.2d 367, and People v. Thaqui, N.Y.L.J. July 22, 1997, p. 25, col. 1. However, that is not the only basis proffered for the charg......
  • Request a trial to view additional results
5 cases
  • City of Brookpark v. Rodojev, No. 106313
    • United States
    • United States Court of Appeals (Ohio)
    • 13 Diciembre 2018
    ...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 ......
  • People v. Mann, No. 2-08-1006.
    • United States
    • United States Appellate Court of Illinois
    • 15 Enero 2010
    ...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......
  • Izer v. State, No. A98A2475.
    • United States
    • United States Court of Appeals (Georgia)
    • 5 Febrero 1999
    ...proved the reliability and acceptance within scientific community of laser gun as accurate means of measuring speed); People v. DePass, 629 N.Y.S.2d 367, 165 Misc.2d 217 (1995) (use of laser device was based upon well-accepted scientific principles and could be accepted in court as accurate......
  • People v. Solomon
    • United States
    • New York County Court
    • 22 Enero 2013
    ...to prove a conviction; and the lower courts are divided as to that. Compare, e.g., People v. Clemens, 168 Misc.2d 54, People v. DePass, 165 Misc.2d 217, 629 N.Y.S.2d 367, and People v. Thaqui, N.Y.L.J. July 22, 1997, p. 25, col. 1. However, that is not the only basis proffered for the charg......
  • Request a trial to view additional results

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