People v. Foster
| Decision Date | 01 July 1970 |
| Citation | 27 N.Y.2d 47,261 N.E.2d 389,313 N.Y.S.2d 384 |
| Parties | , 261 N.E.2d 389 The PEOPLE of the State of New York, Appellant, v. David A. FOSTER, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Matthew F. McHugh, Dist. Atty. (John C. Barney, Ithaca, of counsel), for appellant.
Paul N. Tavelli and Richard I. Mulvey, Ithaca, for respondent.
Defendant was charged with driving at a speed in excess of 50 miles per hour, in violation of section 1180 (subd. (b)) of the Vehicle and Traffic Law, Consol.Laws, c. 71. Following a trial, without a jury, in a Court of Special Sessions held by a Village Justice of the Village of Cayuga Heights, he was convicted and fined $35. On appeal to the County Court, the conviction was reversed. The People now appeal.
The primary question on this appeal is what proof is necessary to establish the violation of section 1180 (subd. (b)) of the Vehicle and Traffic Law. Section 1180 (subd. (b)), as in force at the time of defendant's conviction, provided in pertinent part: 'Except * * * when maximum speed limits have been established as hereinafter authorized, no person shall drive a vehicle at a speed in excess of fifty-five miles per hour.' According to the Trial Justice's return, the only evidence offered by the People was the testimony of the State Trooper, who testified that he stopped defendant on Route 13 in the Village of Cayuga Heights after clocking the defendant at 65 miles per hour in a 50-mile-per-hour zone.
The County Court, in reversing the conviction, held that the above-quoted section created an exception to the general prohibition against exceeding a speed of 50 miles per hour, and that the People and the burden of disproving the applicability of this exception in this case (citing People v. Smith, 192 Misc. 965, 83 N.Y.S.2d 181, affd. 299 N.Y. 707, 87 N.E.2d 123). The County Court agreed that it was required under CPLR 4511 (subd. (a)) to take judicial notice of the Official Compilation of Codes, Rules and Regulations, which did not indicate that a higher speed limit had been established for Route 13 in the Village; however, the court was of the opinion that the People were required to present proof as to the absence of any signs allowing a speed in excess of 50 miles per hour.
The basis of the County Court's position is found in People v. Smith (supra). In that case, the County Court, Suffolk County, sitting as an appellate court, held that the predecessor of section 1180 (subd. (b)) created a 'true exception' which the People had to allege and prove inapplicable in order to secure a conviction. This is no longer true since the advent of the CPLR.
As mentioned, section 1180 (subd. (b)) of the Vehicle and Traffic Law provided that no person shall drive in excess of 50 miles per hour except 'when maximum speed limits have been established as hereinafter authorized'. Hence, it appears that the People must prove that higher speed limits have not been authorized by the State Department of Transportation. Section 1620 (subd. (a)) of the Vehicle and Traffic Law provides one method of establishing that this exception does not apply: 'Absence of signs installed pursuant to this section shall be presumptive evidence that the department of transportation has not established a higher maximum speed limit than the fifty-five miles per hour statutory limit.' Thus, the People could prove that the Department of Transportation has not authorized higher speed limits for an area (and, hence, the exception in subdivision (b) of section 1180 does not apply) by having the arresting officer testify that there were no signs in the area allowing a higher speed. However, the failure of the People to offer such proof is not necessarily fatal to their case. Contrary to the apparent misconception of the County Court and the defendant herein, section 1620 (subd. (a)) is not the only method of proving that higher speed limits have not been authorized.
Title 15 of the Official Compilation of Codes, Rules and Regulations of the State of New York contains the orders, rules and regulations of the State Department of Transportation raising or lowering the maximum speed limits on State highways. Part 1050 of title 15 lists these changes with regard to Tompkins County, and omits any reference to highways within the Village of Cayuga Heights. Such omission 'indicates that as of that date there were no maximum linear speed regulations * * * in effect' in the Village of Cayuga Heights. (See 15 (Book B) NYCRR, Explanation of Numbering System and Key, p. 406.) This Compilation presumptively establishes the codes, rules and regulations of the State. (Executive Law, Consol.Laws, c. 18, § 102.) Pursuant to CPLR 4511 (subd. (a)), '(e)very court shall take judicial notice without request'. Thus, the People met the burden of proof placed upon them by law since the Compilation of Codes, Rules and Regulations, of which the court must take judicial notice, did not contain any change in the 50-mile-per-hour speed limit, for the Village of Cayuga Heights.
It might be argued that under this analysis, the People have not disproved that a sign indicating a higher limit was not erroneously erected. However, that is not the burden which section 1180 (subd. (b)) of the Vehicle and Traffic Law places upon the People. All that is required is that it be proven that higher limits have not been promulgated.
The defendant also contends that the trial court erred in allowing the People to place in evidence a speedometer deviation record to prove the reliability of the speedometer which was used to clock the speed of the defendant's car.
The County Court held that since the defendant had failed to make an objection to the introduction of the deviation record into evidence, the issue could not be raised upon appeal. We agree with that ruling and only add that even if timely objection had been made, the record would have been properly admitted into evidence, if an appropriate foundation for its admission had been laid.
Although such a record is considered...
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Documents
...hearsay exception because they are not the systematic, routine, day-to-day type of record envisioned by the exception. People v. Foster , 27 N.Y.2d 47, 261 N.E.2d 389 (1970); Flaherty v. Am. Turners New York, Inc. , 291 A.D.2d 256, 738 N.Y.S.2d 29 (1st Dept. 2002); Wilson v. Bodian , 130 A.......
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Documents
...hearsay exception because they are not the systematic, routine, day-to-day type of record envisioned by the exception. People v. Foster , 27 N.Y.2d 47, 261 N.E.2d 389 (1970); Flaherty v. Am. Turners New York, Inc., 291 A.D.2d 256, 738 N.Y.S.2d 29 (1st Dept. 2002); Wilson v. Bodian, 130 A.D.......
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Hearsay
...129 N.E.2d 417 (1955). Records prepared solely for litigation are inadmissible under the business records exception. People v. Foster , 27 N.Y.2d 47, 261 N.E.2d 389 (1970); Guide to New York Evidence , NYCourts.Gov, https://www.nycourts.gov/judges/ evidence/8-Hearsay/8.08_Business_Record.pd......
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Hearsay
...129 N.E.2d 417 (1955). Records prepared solely for litigation are inadmissible under the business records exception. People v. Foster , 27 N.Y.2d 47, 261 N.E.2d 389 (1970); Guide to New York Evidence , NYCourts.gov, https://www.nycourts.gov/judges/ evidence/8-Hearsay/8.08_Business_Record.pd......