People v. Mayoue

• Decision Date: 20 April 1966
• Citation: 269 N.Y.S.2d 922,50 Misc.2d 150
• Parties: PEOPLE of the State of New York, Plaintiff, v. Vincent H. MAYOUE, Defendant.
• Court: New York Court of Special Sessions

Page 922

269 N.Y.S.2d 922

50 Misc.2d 150

PEOPLE of the State of New York, Plaintiff, v. Vincent H. MAYOUE, Defendant.

Court of Special Sessions of Town of Penfield, Monroe County.

April 20, 1966.

John C. Little, Jr., Dist. Atty., John W. Fulreader, Asst. Dist. Atty., of counsel, for the People.

Philip C. Burke, Rochester, for defendant.

DONALD J. MARK, Justice of the Peace.

The defendant was charged with operating his motor vehicle 60 miles per hour in a 40 miles per hour zone in violation of Section 1180(b) 3 of the Vehicle and Traffic Law. At the conclusion of the People's case the defendant moved to dismiss the information upon the ground that the prosecution had offered insufficient proof as to posting.

Decision was reserved on the defendant's motion. The defendant's subsequent testimony then established the fact that he had passed both a warning sign to reduce speed and a 40 mile per hour speed limit sign prior to the violation of which he was charged.

The law is clear that if a motion to dismiss at the close of the People's case should properly have been granted, later testimony by the defendant cannot be used to supply what the evidence offered by the prosecution failed to prove. People v. Raubvogel, 217 App.Div. 733, 216 N.Y.S. 891 (1st Dept. 1926); People v. Rosen, 40 Misc.2d 401, 243 N.Y.S.2d 26 (Co.Ct., Nassau Co. 1963).

Thus, it need only be determined if the proof offered by the People in regard to posting were sufficient.

The only evidence offered by the prosecution to prove proper posting was the testimony of the arresting officer that he knew this was a 40 mile per hour speed zone because 'there was several speed zone signs in that area,' that these were the normal regulation size signs and that he saw these signs on the date of the alleged violation.

The law has now evolved to a point that in a prosecution for speeding there is a presumption that a speed zone has been properly established. People v. Kesten, 15 N.Y.2d 857, 257 N.Y.S.2d 963, 205 N.E.2d 881 (1965); People v. Hollingsworth, 46 Misc.2d 1017, 261 N.Y.S.2d 470 (Co.Ct., Suffolk Co. 1965).

However, there still must be proof that signs were erected to afford reasonable notice of such restricted speed zone, People v. Lathrop, 3 N.Y.2d 551, 170 N.Y.S.2d 326, 147 N.E.2d 722 (1958); People v. O'Malley, 31 Misc.2d 1024, 221 N.Y.S.2d 87 (Sup.Ct. Erie Co. 1961), aff. 11 N.Y.2d 943, 228 N.Y.S.2d 828, 183 N.E.2d 229 (1962), except that in a prosecution for speeding in a 50 mile per hour zone, proof as to the absence of signs is presumptive evidence that no greater speed limit was established. People v. Shapiro, 7 N.Y.2d 370, 197 N.Y.S.2d 715, 165 N.E.2d 564 (1960); People v. Aubin, 231 N.Y.S.2d 466 (Co.Ct., Jefferson Co. 1962).

Even though the Court knows that the signs were properly posted, judicial notice cannot be taken of such posting. People v. Silcox, 34 Misc.2d 335, 228 N.Y.S.2d 634 (Co.Ct., Orleans Co. 1962); People v. Salzburg, 47 Misc.2d 866, 263 N.Y.S.2d 415 (Co.Ct., Nassau Co. 1965).

In People v. Ryan, 32 Misc.2d 800, 220 N.Y.S.2d 428 (Co.Ct., Orleans Co. 1961) a conviction for speeding was reversed upon the ground that no evidence was introduced showing the existence of speed zone signs although the establishment of a 35 miles per hour zone by the State Traffic Commission was proved to the satisfaction of the Court.

In People v. Lord, 29...