People v. Farrell
| Decision Date | 08 December 1987 |
| Citation | 523 N.Y.S.2d 383,137 Misc.2d 926 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. James M. FARRELL, Defendant. |
| Court | New York Justice Court |
John L. Murray, Village Prosecutor of Dobbs Ferry, for the People.
Lawrence H. Ecker, Yonkers, for defendant.
At the trial of Defendant on a charge of violating Section 1180(d) of the Vehicle and Traffic Law, Defendant moved to exclude certain exhibits offered by the People and the Court reserved decision as to the motion and as to the verdict. This is now a decision on the motion and a verdict.
Defendant was charged with operating his automobile at a speed of 41 miles per hour on Belden Avenue in Dobbs Ferry, which is zoned 25 miles per hour. At the trial Officer Palfy testified that on March 25, 1987 his patrol vehicle was parked in a driveway facing Belden Avenue, that he observed Defendant approaching and estimated Defendant's speed at 40 miles per hour, that he then activated the radar unit in his patrol car and it read 41 miles per hour. Officer Palfy stopped Defendant's vehicle and issued a summons.
Officer Palfy testified that he had been a Police Officer since 1976 and has performed extensive patrol duty, that he had been trained by the Division of Criminal Justice Services as a certified radar operator in 1974 as a member of the Sheriff's Department and again in 1981 while a police officer and that he has been recertified in 1983, 1985 and 1987, that as part of this training he had also been taught to estimate speeds visually and constantly tests himself against radar and other speed measuring devices and estimates speeds with less than a five mile per hour error.
Officer Palfy testified further that on March 25, 1987 he placed his patrol vehicle at several locations (including Belden Avenue) and at each location he tested the radar unit by (i) a light test which checks the functioning of the radar unit (ii) an internal calibration test made by testing the circuitry which, when activated, should, and did, cause a reading of 32 m.p.h. (iii) two tuning fork tests made by striking the two tuning forks, calibrated to register 35 m.p.h. and 65 m.p.h. respectively, and noting the radar read-out of 35 and 65 m.p.h. respectively. In addition several times on that day Officer Palfy checked the radar read-out against the calibrated speedometer of a moving police vehicle.
Officer Palfy then offered a document entitled "Authentication of Records of Dobbs Ferry Police Department Pursuant to CPLR 4518", which consists of a notarized affidavit of Lt. Frank Perilli, of the Dobbs Ferry Police Department (the "Perilli Affidavit") and which states, among other things, the following:
Annexed to the Perilli Affidavit are copies of a number of documents, the relevant ones being the following:
A. A "Certification Pursuant to CPLR 4518 of Records Maintained in the Regular Course of Business" dated February 10, 1987 made by Edward L. Reynolds, Director, Highway Safety Unit, Bureau for Municipal Police, New York State Division of Criminal Justice Services (the "Reynolds Certificate"). Attached to the Reynolds Certificate are copies of three test reports (the "Test Reports"), which will be described. Reynolds certifies that the copies of the Test Reports annexed to the Reynolds Certificate are exact photocopies of the original records of the Bureau for Municipal Police which are in his possession, custody and control, that the three Test Reports were made by an employee of the Bureau for Municipal Police in the regular course of the Bureau's business, that the Test Reports were made at the time of the tests and that it was in the regular course of the Bureau For Municipal Police's business to make such Test Reports at the time of a test or a reasonable time thereafter and to report the results of said tests to the police agency which requested it. The three Test Reports consist of (i) a Certification of Calibration dated February 5, 1987 which certifies as to the testing on January 28, 1987 of the radar unit and the tuning forks used in Officer Palfy's patrol vehicle (ii) the actual radar test dated January 28, 1987 and (iii) the Certificates of Accuracy for the tuning forks dated January 28, 1987.
The photocopy of the Reynolds Certificate which was attached to the Perilli Affidavit showed evidence that the Reynolds Certificate contained a seal, and Officer Palfy testified that the original Reynolds Certificate, and the copies of the Test Reports attached to it, were in the possession of the Dobbs Ferry Police Department, as was attested in the Perilli Affidavit.
B. A copy of a "Radar Activity Log" made by Officer Palfy on March 25, 1987, the date of the alleged violation, showing the light, internal calibration, and tuning fork test results at the beginning of Officer Palfy's tour and that all functions checked during six additional tests made during the tour of duty, the locations where Officer Palfey patrolled, and the details of six summonses issued on that date.
C. Copies of four certificates to the effect that Officer Palfy is certified as a "Doppler Traffic Radar Operator" (the "Radar Operator Certificates"). The first of these certificates is dated December 4, 1981 and it, together with the three renewal certificates, covers the entire period from December 4, 1981 to date. These certificates were also issued by the Bureau For Municipal Police, are signed by its commissioner and contain the seal of the Bureau For Municipal Police.
Defendant objected to the admission into evidence of the Perilli Affidavit and all of the copies of documents attached to it. He claims that the copy of the Reynolds Certificate and the Test Reports violate the Best Evidence Rule. He objects to the Radar Activity Log as constituting "material prepared solely for litigation rather than a business record" and to the Radar Operator Certificates as being "not self-authenticated" and without a proper foundation. Accordingly, Defendant argues, there is insufficient evidence as to Defendant's guilt and the court should acquit. Since the court reserved decision on the motion when it was made, the Defendant also testified in his defense that he did not exceed the speed limit. During his testimony Defendant gave evidence as to the appearance of other persons which, it appears, was not correct and which Defendant subsequently retracted and modified.
In light of the numerous objections to the various documents, the court will address each one separately.
As stated in the Reynolds Certificate, Reynolds was Director of the Highway Safety Unit of the Board for Municipal Police, which in turn, is part of the State of New York, Division of Criminal Justice Services. This Division was established pursuant to Executive Law, Sections 835 et seq., and it performs numerous functions relating to law enforcement, including the promulgation of standards with respect to radar use and the testing of equipment for municipal police departments. After performing tests on radar equipment, the Bureau prepares a certificate such as the Reynolds Certificate and forwards to the police department which requested the test the original of such certificate, containing the Bureau's seal, to which is attached copies of the test reports. In any event, the Reynolds Certificate, according to the record, is such an original sealed certificate and is in the custody of the Dobbs Ferry Police Department.
If the original Reynolds Certificate were offered, it would be admissable and prima facie evidence of the facts contained therein. See CPLR 4518(a), 4518(c) and 4540; People v. Gower, 42 N.Y.2d 117, 397 N.Y.S.2d 368, 366 N.E.2d 69 (1977); People v. Brown, 128 Misc.2d 149, 488 N.Y.S.2d 559 (Madison Co.1985). The deficiency which was held to make a similar certificate inadmissable in People v. Drumm, 122 Misc.2d 1051, 472 N.Y.S.2d 989 (Monroe Co.1984) does not exist in the Reynolds Certificate. The question here is whether a photocopy of the Reynolds Certificate and the Test Reports, attached to the Perilli Affidavit, are admissable. It is this court's opinion that the photocopies are admissable.
CPLR 4518(c) provides for the admissability of "records, writings and other things referred to in Sections 2306, 2307 ..." CPLR 2307(a) identifies, among other things covered by it "... books, papers or other things ..." of "... a department or bureau of a municipal corporation or of the state ..." The Test Reports are "official records" of a public body of New York State (CPLR 4540(a)) and the Reynolds Certificate is a certificate complying with CPLR 4540(b). The Bureau For Municipal Police was acting at the request of the Dobbs Ferry Police Department, and sent the Reynolds Certificate and the Test Reports to said Police Department within the scope of the Bureau's business duty. See Matter of Leon RR, 48 N.Y.2d 117, 421 N.Y.S.2d 863, 397 N.E.2d 374 (1979). The Reynolds Certificate and the Test Reports thus became business records of the Dobbs Ferry Police Department. In any event, they are "papers" of the Dobbs Ferry Police Department, which is "a department ... of a municipal corporation" (see CPLR 2307). As such, these records are admissable under CPLR...
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