People v. Perlman
| Decision Date | 16 March 1977 |
| Citation | 89 Misc.2d 973,392 N.Y.S.2d 985 |
| Parties | The PEOPLE of the State of New York, v. Irving PERLMAN, Defendant. |
| Court | New York District Court |
The defendant is charged with a violation of Section 1180(d) of the Vehicle and Traffic Law. The simplified traffic information alleges that on April 6, 1976, at 7:53 a.m., the defendant operated a 1973 Buick eastbound on Southern State Parkway, east of Belmont Road, in the Town of Babylon, at a spped of 67 m.p.h. in a 55 m.p.h. zone.
The charge has been made by an officer of the Long Island State Parkway Police, who on that date was utilizing a Digidar I Radar unit for speed detection as a one-man team, doubling both as a radar operator and chase man. The People contend that the defendant's speed was clocked by means of such speed detection device, and that, in addition, an independent estimate of the defendant's speed was made by the officer at a distance of 400 feet, through the rear view mirror of his police vehicle. It is further contended that the unit had been properly tested, and it was the officer's opinion that the unit was functioning properly when it recorded the defendant's speed at 67 m.p.h.
In contrast, the defendant testified that he was travelling at a speed between 50 and 55 m.p.h., and that his vehicle never exceeded a speed of 55 m.p.h. The defendant moved generally, at the close of the People's case, to dismiss for failure to make out a prima facie case; and at the close of the trial, for failure on the part of the People to prove the defendant guilty beyond a reasonable doubt. The defendant contends, inter alia, that the information was jurisdictionally defective since: (1) the officer's signature on the defendant's copy differed from the court's copy; (2) the date of violation had been changed on all copies from '3 March' to '6 April' prior to issuance of the summons; and (3) the information did not indicate whether the defendant was charged with a traffic infraction or a misdemeanor; and that the radar device was inaccurate and was not properly tested. Decision was reversed as to each of these applications by the defendant.
The Smith and Wesson Digidar I Radar unit, which is in widespread use on Long Island parkways, has been in use by the Long Island State Parkway Police since at least 1974. The arresting officer testified that he had been using this unit since then, and that he had been trained in its operation at a two-day school conducted by the manufacturer. It is a digital readout device consisting of two component parts: a console which is mounted on the dashboard of the police vehicle, and a parabolic antenna transceiver which is either mounted on a tripod outside the vehicle or on the police vehicle itself. In this case, with the officer operating as a one-man team, the antenna was mounted on the side of the police vehicle monitoring eastbound traffic for a distance of 300 feet.
The unit is powered by a 12 volt source, and built into it is an internal calibration switch which is used by the operator to both check the function of the numitrons--digital numbers on the console--which record vehicular speed, and to check the speed timing device at a reading of 60 m.p.h.
The officer testified that on the date in question, at his first location, he tested the accuracy of the unit by striking a 60 m.p.h. tuning fork in front of the raised antenna and observing a reading of '60' on the console; and by conducting an internal calibration test and observing a reading on the console of '188' and then '60.' This indicated to him that the numitrons were working and that the speed timer was working accurately. He further testified that at each subsequent setup, including the set up at which the defendant's vehicle was clocked, after having moved his vehicle, he performed only the internal calibration test, and that at the end of his tour, he performed both the tuning fork and the internal calibration tests.
This testing procedure contrasted with the procedure which the officer described when the radar operator was part of a multiple or two-man team. At such time, the radar vehicle is not moved during the tour of duty, and prior to the opening of business, the radar is tested by three means: (1) the tuning fork test; (2) the internal calibration test; and (3) by driving a police vehicle with a calibrated speedometer through the zone of influence of the radar at a known speed. It was his testimony that each of these tests is then repeated at the closedown of business on such a tour of duty.
Almost twenty years have passed since Judge Froessel, speaking for a unanimous Court of Appeals, stated that '. . . the time has come when we may recognize the general reliability of the radar speedmeter as a device for measuring the speed of a moving vehicle, and that it will no longer be necessary to require expert testimony in each case as to the nature, function or scientific principles underlying it.' People v. Magri, 3 N.Y.2d 562, 566, 170 N.Y.S.2d 335, 338, 147 N.E.2d 728, 730. Science and technology have advanced cons in this short span of time, and we have seen the mass production of computers and digital devices. Radar detection of speed has moved from its infant stage with graphic readouts of vehicular speed to digital detection devices which lock in on the speed of an offending motorist. Various types of radar devices have gained wide acceptance in all courts, to the point where the words of a trial Judge equating radar with bread as a 'staff of our life,' which may have seemed overly enthusiastic in 1955, appear with hindsight to have been truly prophetic, if somewhat exaggerated. People v. Sachs, 1 Misc.2d 148, 160, 147 N.Y.S.2d 801, 812. It should be noted that it was the Sachs case (supra) and other well considered lower court decisions, such as People v. Nasella, 3 Misc.2d 418, 155 N.Y.S.2d 463 and People v. Sarver, 205 Misc. 523, 129 N.Y.S.2d 9, which the Court of Appeals cited and made specific reference to in the Magri decision (supra).
Nevertheless, this court feels compelled to consider the quantum and quality of evidence necessary to convict in this case involving a digital radar device which is in widespread use, there appearing to be a real difference between this device and those under consideration in the earlier cases, and their practical application in speed detection. To do so, it is necessary to compare the earlier types of radar devices with the more sophisticated type of radar speed detection devices, and in particular, the Smith and Wesson Digidar I unit which was used herein; and to compare the means used by law enforcement officials to test these instruments and to detect potential offenders.
In the earliest cases (Sachs, Nasella and Magri, supra), the radar device being utilized by the New York City Police and the State Park Police, respectively, contained a speedmeter which provided the officer in the radar car, who was part of a radar team including a 'chase car', with a graphic readout of the speed of vehicles passing through the zone of influence of the radar, and with a graphic readout of all tests performed as to the accuracy of the radar device.
In all of the early cases, after choosing a location for operation of the radar equipment, a police vehicle with a calibrated speedometer--either a motorcycle or an automobile--was driven through the zone of influence of the radar, at a known speed, and the accuracy of the radar speedmeter was checked against the speed of the calibrated vehicle. Such test speed was recorded on the graph and was made available to the court at trial. At the close of business, a like test was conducted and recorded in each case. In addition, in Magri (supra), 3 N.Y.2d, p. 564, 170 N.Y.S.2d p. 336, 147 N.E.2d p. 729, the radar was checked further for accuracy 'by striking a sounding fork, which is set by the manufacturer at 50 m.p.h., in front of the transmitter-receiver both before and after the violation.'
It is important to note that in each of these cases, the radar detection unit consisted of more than one officer, and the radar was set up in a stationary position throughout the course of the tour of duty of the radar team. This is in contrast with the instant case where the police officer operated as a one-man team, functioning both as a radar operator and a chase man to apprehend an offender; thereby necessitating the removal of the police vehicle to a different location when a chase became necessary. In this case, defendant was the fifth person given a summons on April 6 by the arresting...
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