People v. Leatherbarrow
| Decision Date | 11 April 1972 |
| Citation | 69 Misc.2d 563,330 N.Y.S.2d 676 |
| Parties | The PEOPLE of the State of New York v. John C. LEATHERBARROW, Defendant-Appellant. |
| Court | New York County Court |
The defendant has appealed his conviction after trial in the Town of Brant Justice Court (Gugino, J.) upon a charge of operating a vehicle at a speed of ninety-four miles per hour in a fifty-five mile per hour zone in violation of Section 1180, subdivision (b), of the Vehicle and Traffic Law.
The People's proof consisted of testimony by two New York State Police Officers, unfortunately offered without the aid of a prosecuting attorney. Both officers testified that on November 15, 1971, at approximately 1:15 a.m., they observed a vehicle approaching their parked patrol car 'at a very high rate of speed' in a westerly direction along Route No. 5, a public highway. Their car was equipped with a 'Vascar' speed-measuring device with which they were monitoring traffic passing through a previously measured 'speed trap'. Trooper Winkowski testified over objection that he obtained a reading of 94.3 miles per hour as the defendant's vehicle passed through the trap and that he had independently estimated the car's speed to be in excess of ninety miles per hour. Trooper Balon was unable to offer any independent estimates beyond a statement that the defendant passed the patrol car 'at a great rate of speed.'. Trooper Winkowski further testified that he had checked the Vascar unit accuracy some three hours prior to the defendant's arrest. A 'calibration sheet' prepared by Winkowski and certifying the unit's accuracy at that time was accepted in evidence over the defendant's objection.
The defendant has argued several points as grounds for a reversal of this conviction. His initial argument concerns the complainant's failure to testify or otherwise prove that a speed limit greater than fifty-five miles per hour had not been established for this area of Route 5.
Section 1180, subdivision (b), of the Vehicle and Traffic Law provides, in substance, that except where different maximum speed limits have been lawfully established, no person shall operate a vehicle in this State at a speed in excess of fifty-five miles per hour. Section 1620, subdivision (a), authorizes the Department of Transportation to establish higher or lower speed limits for state highways and further provides that the absence of signs allowing a higher speed shall be presumptive evidence that a speed greater than fifty-five miles per hour has not been authorized. It is the defendant's contention that this presumption may not be relied upon by the People unless there has been some testimony as to the absence of signs indicating a higher limit. (See People v. Aubin, Co.Ct., 231 N.Y.S.2d 466)
But there is another method of establishing the applicability of the fifty-five mile per hour speed limit. A trial court may properly take judicial notice of the Official Compilation of Codes, Rules and Regulations of the State of New York and the absence therein of any Department of Transportation regulation establishing a higher speed limit for Route 5 in the Town of Brant. (People v. Foster, 27 N.Y.2d 47, 313 N.Y.S.2d 384, 261 N.E.2d 389) And a Court may do so, as in this case, without the People's request. (C.P.L.R. Section 4511, subdivision (a))
A reversal is further urged on the basis of the trial court acceptance of Trooper Winkowski's independent estimate of the defendant's speed. The defendant contends, quite properly I believe, that the record failed to establish the officer's qualifications in that regard. A careful reading of the testimony shows that he had been a licensed operator for twenty-one years and a trooper for nine and a half years; that he drives approximately twenty-five thousand miles per year and in the course of daily patrols, 'Had opportunities to check dozens of vehicles.'; and that he had been a radar operator for approximately one year and a Vascar operator for a similar period.
While the officer undoubtedly meant to so indicate, he in fact did not state that he had ever estimated the speed of any moving vehicle or compared his estimates with any speed measuring device of known accuracy. Nor...
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