People v. Maniscalco
| Decision Date | 23 January 1978 |
| Citation | 94 Misc.2d 915,405 N.Y.S.2d 888 |
| Parties | PEOPLE of the State of New York v. Joseph P. MANISCALCO. |
| Court | New York Justice Court |
Donald Schwartz, for defendant.
W. P. Downes, for the People.
Defendant was charged with violation of § 1180(b) of the Vehicle & Traffic Law to wit traveling at a speed of 75 miles per hour in a 55 mile zone. After the People's case, the defense moved to have the case dismissed on the grounds that a prima facie case had not been established, since the radar equipment used was not tested properly, relying on People v. Perlman, 89 Misc.2d 973, 392 N.Y.S.2d 985 (1977). The Court reserved decision on that motion and the trial was completed. The Court stated it found defendant guilty of speeding, but would consider defendant's prior motion as a motion to set aside the verdict. The Court reserved decision pending receipt of a motion in writing. It explained that it had read Perlman, had serious reservations about the case, but had not heretofore been faced with a motion to dismiss on this basis, and accordingly wished to give careful consideration to defendant's motion.
Certain parts of the trial testimony are relevant to a consideration of this motion, and accordingly will be summarized here. The testimony established that when the trooper stopped to observe traffic, he set up a MR7 type radar unit. Before putting it into operation, he made various calibration tests. These included internal calibration tests as well as tests with two tuning forks.
The testimony established that the two tuning forks were kept in individual cases, which, in turn, were in a large case. The tuning forks themselves were checked for accuracy in March 1977 (see People Exhibits 1 and 2 marked into evidence), and, according to the trooper's testimony, other calibrations of the tuning forks after the date of defendant's alleged infraction indicated that they remained accurate. In order to test the radar with the tuning forks, the tuning forks were struck on a non-metalic object and then placed in front of the radar's antenna. The trooper stated that if the radar is functioning properly, it shows a readout of 35 when one tuning fork is so manipulated and a readout of 65 with the other tuning fork, and the radar did so here.
After completion of his tour, the trooper again checked out the radar using various internal calibration tests and the same tuning fork tests. All tests indicated to the trooper, a trained radar operator, that the radar was functioning properly. He does not remember if he moved the car between the performance of tests at the beginning and end of his tour.
As defendant states, the "crux of the Perlman case is that in order for a Court to rely upon evidence adduced by way of a radar device that device must be tested by means of a comparative analysis and not by means of internal tests." The Court in Perlman stated:
"To accept less and to rely solely upon the internal calibration by the machine itself, without the testimony of an expert witness, is to render an injustice to the accused, and to encourage a 'slavish adherence' to an electronic device which is potentially subject to inaccuracies and failure, as are all machines and human beings alike."
Perlman, as, of course, defendant recognizes, is a lower court decision, i. e., the District Court in Suffolk County, and this Court is not bound thereby. The decision in that case must be contrasted with that of the appellate court in People v. Lynch, 61 Misc.2d 117, 119, 304 N.Y.S.2d 985, 987, cited in Perlman. There, as in Perlman, and as here, "no test vehicle was used to pass through the radar's field of influence" (see 392 N.Y.S.2d at 989). Instead an internal calibration test, a 50 mile per hour tuning fork and a 30 mile per hour tuning fork were used (see 304 N.Y.S.2d at 986). The appellate court in Lynch stated:
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...the defendant's speed. See, e.g., People v. Magri, 3 N.Y.2d 562, 564-65, 170 N.Y.S.2d 335, 147 N.E.2d 728 (1958); People v. Maniscalco, 94 Misc.2d 915, 917-18, 405 N.Y.S.2d 888. See also: People v. Smalley, 64 Misc.2d 363, 364-65, 314 N.Y.S.2d 924. However, both forms of evidence are not ne......
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