People v. Olsen

• Decision Date: 09 August 1967
• Citation: 285 N.Y.S.2d 192,55 Misc.2d 321
• Parties: The PEOPLE of the State of New York, Respondent, v. James N. OLSEN, Defendant.
• Court: New York County Court

Page 192

285 N.Y.S.2d 192

55 Misc.2d 321

The PEOPLE of the State of New York, Respondent, v. James N. OLSEN, Defendant.

Herkimer County Court.

Aug. 9, 1967.

George G. Fiesinger and Edward Rose, Little Falls, for defendant.

A. W. Schneider, Dist. Atty., Henry D. Blumberg, Asst. Dist. Atty., argued the appeal, for the People.

EDMUND A. McCARTHY, Judge.

This is an appeal from a conviction in the City Court, City of Little Falls, (Bernard J. Malone, J.), wherein the defendant was convicted of driving at a speed not reasonable or prudent.

From the City Judge's return on this appeal, it is plain to be seen that this case was tried on the erroneous theory that it was necessary to have high speed in a prohibited zone in order to sustain a charge of imprudent speed. As a result of that premise the affidavit of errors in three of its four alleged error devotes itself to the element of speed. The fifth alleged error set out a failure to prove an alleged violation of a subdivision of the Vehicle and Traffic Section not alleged in the complaint. From the return it would appear that an effort is being made to create a test case as to the quantity and quality of testimony necessary to establish speed.

The Court of Appeals has spoken quite adequately, if not clearly, on the type of evidence that it would approve in speeding cases, and this court feels that the rulings of the Court of Appeals inferentially stamp at least the type of proof produced in this case as insufficient to sustain the speed element. The important elements of this particular conviction here are found in Section 1180 of the Vehicle and Traffic Law as charged in the information.

In People v. Dusing, 5 N.Y.2d 126, 130, 181 N.Y.S.2d 493, 155 N.E.2d 393. Judge VanVoorhis said, 'We should not hold that the speed of an automobile in a prosecution of this nature (speeding) can be established by the observations of eyewitnesses, no matter how expert they may be, unless the speed is checked by some mechanical or electrical device.' That declaration, although not a part of the prevailing opinion, does fix the quality of the proof required to sustain a charge of speeding, so that this opinion should be considered as a precedent in law as to the proof required, no matter how expert witnesses may be and regardless of the number of witnesses presented. The courts know that the question of integrity is always presented by eyewitness testimony and also there may be no question of integrity in an uncalibrated speedometer. The Court of Appeals has set down that standard in connection with the question of reliability. The complaint in ...