People v. Heyser

• Decision Date: 08 March 1957
• Citation: 141 N.E.2d 553,2 N.Y.2d 390,161 N.Y.S.2d 36
• Parties: , 141 N.E.2d 553 The PEOPLE of the State of New York, Respondent, v. Carl J. HEYSER, Jr., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 36

161 N.Y.S.2d 36

2 N.Y.2d 390, 141 N.E.2d 553

The PEOPLE of the State of New York, Respondent, v. Carl J. HEYSER, Jr., Appellant.

Court of Appeals of New York.

March 8, 1957.

George A. Murphy, Seaford, for appellant.

Frank A. Gulotta, Dist. Atty., Mineola (Henry P. De Vine, Mineola, of counsel), for respondent.

FROESSEL, Justice.

On April 18, 1956, at 2:30 p. m., Patrolman Einemann, a member of the Long Island State Park Police, observed defendant's car proceeding west on the Northern State Parkway at what he judged to be a high rate of speed. He proceeded to follow it no cars were in his way until he reached a position about 100 yards behind it, and he maintained that position for over a quarter of a mile.

During that time, Einemann testified without objection, he observed that his speedometer read about 64 m.p.h. He also testified that he drove motor vehicles since he received his license in 1938; during that time he has had occasion to estimate the speed of moving cars; he checked those estimates against the speedometer, and it usually came fairly close within 5 miles or so. 'Independent of the speedometer', and at the time he was following this defendant, he estimated the speed of defendant's car at about 60 m.p.h. Einemann further testified that on several occasions he had checked his estimates of the speed of vehicles with radar devices, and had found that his estimates were correct or 'within five miles'. The patrolman stopped defendant and told him that he was exceeding the applicable speed limit which, it is undisputed, is 40 m.p.h. Defendant replied 'he didn't believe that he was going sixty miles an hour'.

After the People rested, defendant's attorney made no motion to dismiss, merely stating: 'I'll reserve my motions.' Defendant, an attorney, stated that he saw this police car and then moved from the left lane to the right, stepping on the gas; that the police officer 'caught up to me and followed me approximately a half mile, still with his blinker light flashing all the time. About a half mile after that he blew a siren and I pulled over to the right. I didn't realize he was following me.' On cross-examination, he said that traffic was 'very light'; he had been traveling in the left line for a mile or so though there were no cars to his right. He further claimed that during the period the patrolman was following him, he looked at his speedometer several times, and 'It showed approximately forty miles an hour'; that he had his speedometer tested and it was accurate, though that statement was but hearsay. He could not say how fast he was going when he went over to the right, but when he got there he slowed down. His conviction was affirmed by the County Court of Nassau County.

Defendant here argues that the People have failed to sustain their burden of proof on the issue of his speed. He contends that the reading of a speedometer in the patrol car, without additional proof that it had been tested, is insufficient, and that the estimate of the patrolman as to the speed at which he was proceeding was merely his opinion, and as such was insufficient evidence to support the conviction by the District Court Judge sitting as a Court of Special Sessions.

As to the evidence of the reading of the speedometer in the police patrol car, a number of County Courts have held that when there was no competent evidence of the accuracy of the speedometer, a conviction based upon a speedometer reading will be reversed. People v. Boehme, 1 Misc.2d 629, 152 N.Y.S.2d 759 (Nassau County); People v. Rothstein, 1 Misc.2d 516, 152 N.Y.S.2d 757 (Westchester County); People v. Rice, 206 Misc. 999, 136 N.Y.S.2d 134 (Columbia County); People v. Matthews, 4 Misc.2d 278, 155 N.Y.S.2d 873 (Tioga County); People v. Greenhouse, 4 Misc.2d 692, 136 N.Y.S.2d 675 (Jefferson County); see, also, People v. Sachs (radar), 1 Misc.2d 148, 155-156, 147 N.Y.S.2d 801 (N.Y.C.Mag.Ct., Queens).

There is a dearth of authority in the appellate courts in this country on this question (see 21 A.L.R.2d 1200), although it has been held in civil cases that testimony as to the speed of a motor vehicle is admissible where such testimony is predicated upon the witness' observation on other occasions of an untested speedometer. Senecal v. Drollette, 304 N.Y. 446, 448, 108 N.E.2d 602, Shulman v. Roseth Corp., 227 App.Div. 577, 238 N.Y.S. 575. In the last-cited case, the Appellate Division compared the speedometer with a watch, 227 App.Div. 578, 238 N.Y.S. 576.

In our opinion, evidence of the reading of an untested speedometer...