People v. Marsellus

• Decision Date: 16 May 1957
• Citation: 163 N.Y.S.2d 1,143 N.E.2d 1,2 N.Y.2d 653
• Parties: , 143 N.E.2d 1 The PEOPLE of the State of New York, Appellant, v. Hohn F. MARSELLUS, respondent.
• Court: New York Court of Appeals Court of Appeals

Page 1

163 N.Y.S.2d 1

2 N.Y.2d 653, 143 N.E.2d 1

The PEOPLE of the State of New York, Appellant, v. Hohn F. MARSELLUS, respondent.

Court of Appeals of New York.

May 16, 1957.

Angus G. Saunders, Dist. Atty., Watertown (Robert M. Weldon, Watertown, of counsel), for appellant.

Louis J. Lefkowitz, Atty. Gen. (James O. Moore, Jr., and Philip J. Fitzgerald, Albany, of counsel), amicus curiae, in support of appellant's position.

Allan G. Patch, Watertown, for respondent.

DESMOND, Judge.

The People appeal from an order of the County Court, Jefferson County, which reversed a judgment of a Court of Special Sessions of the Town of Ellisburg in that county after a trial before a Justice of the Peace without a jury, convicting defendant of the traffic infraction of speeding in violation of subdivision 3 of section 56 of the Vehicle and Traffic Law. The County Court order, which includes by reference the County Court's opinion, constitutes a reversal on the facts and the law. As to the law reversal, we hold that the County Court was in error especially in view of People v. Heyser, 2 N.Y.2d 390, 161 N.Y.S.2d 36.

We take up first that alleged error of law which, the County Court said, required a reversal. The arresting policeman, a State trooper who was the only witness for the People, testified that he followed defendant's car for about 2 miles in a 50-mile speed zone and that the speedometer on the officer's car showed speeds between 65 and 70 miles per hour (see Vehicle and Traffic Law, § 56, subd. 3, supra). The officer then testified that his opinion, based on his experience of many years, was that defendant's car was traveling in excess of 60 miles per hour. Then the officer was allowed over objection to testify that on a date about six weeks before this arrest the speedometer on the State car that he was driving at the time of this arrest had been calibrated or checked as to accuracy at a service station where State Police cars were customarily so checked. The officer's testimony was that he stood by and watched while the employee of the service station checked the State car's speedometer against a master speedometer and that the two speedometers registered the same speed. In People v. Heyser, 2 N.Y.2d 390, 393, 161 N.Y.S.2d 36, 38, supra, we held that 'evidence of the reading of an untested speedometer without more would be insufficient to sustain a conviction for speeding'. However, in Heyser, we held at least by implication that evidence as to what even an untested speedometer showed was admissible. We must, therefore, reject the conclusion reached by the County Judge that the receipt in the present case of the evidence of speedometer testing was an error of law.

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