People v. Salzburg

Decision Date02 August 1965
Citation47 Misc.2d 866,263 N.Y.S.2d 415
PartiesPEOPLE of the State of New York, Respondent, v. Joel SALZBURG, Defendant.
CourtNew York County Court

William Cahn, Dist. Atty., Nassau County, Mineola, for the People.

George M. Burgh, New York City, for defendant-appellant.

PAUL J. KELLY, Judge.

Joel Salzburg, defendant-appellant, was convicted before the Hon. Robert Forman, Police Court Justice, Incorporated Village of Sands Point on the 29th day of July, 1964, for a violation of the Sands Point Village Ordinance, Article III, § 1, commonly called speeding and for violation of § 1174, subd. (a), Vehicle and Traffic Law, commonly called passing a stopped school bus.

On May 19, 1964 the defendant-appellant Joel Salzburg was driving in an easterly direction along Harbor Road in Sands Point, New York. A school bus was stopped facing North on East Harbor Road which runs perpendicular to Harbor Road in the Incorporated Village of Sands Point. The school bus was properly marked, was loading children, and had its lights flashing. The defendant-appellant while driving along Harbor Road from West to East passed across the intersecting street upon which the school bus was stopped. It is further alleged that defendant was speeding as he passed the school bus and continued to speed until he was stopped by the officer.

The defendant contends that the conviction under Village Ordinance, Article III, § 1 should be reversed because the People failed to prove a prima facie case in not proving (1) that signs were posted at the time of the commission of the alleged violations; (2) what these signs said at that time; and (3) that the Village of Sands Point had conformed with the requirements of the Vehicle and Traffic regulations as to size, color, and lettering of the signs in question.

In order to make out a prima facie case, there must be testimony taken as to whether signs were posted at the time of the violation. It is not sufficient to have testimony that signs were posted at the time of the trial, since obviously this would not prove that there were signs which the defendant could have seen on the day of the alleged violation. In this case the only testimony on the point was:

'Q. What is the rate of speed in the Village of Sands Point? A. Thirty-miles per hour.' (P. 7).

In addition testimony must be taken as to what the signs said at the time of the violation. The testimony in this case only contains the following:

'Q. What is on the signs? A. Incorporated Village of Sands Point, speed limit 30 miles per hour.' (P. 7).

The Court cannot take judicial notice of either of these vital factors. The Officer in testifying in response to both questions used language which clearly is indicative of present tense, and does not refer back to the date of the violation. Even though the Court may know as an actual fact that the required signs were posted on the date of the alleged violation, judicial notice cannot be taken as to the posting or as to the speed limit posted thereon. (People v. Silcox, 34 Misc.2d 335, 336, 228 N.Y.S.2d 634, 636.)

'It is to be noted that the witness used language that indicated that signs were posted and present on December 20, 1961, the date of the trial. However, he did not state or use any language from which it can reasonably be inferred that the required signs were posted on December 2, 1961, the date of the alleged violation. The word 'are' does not lend itself to an interpretation that since signs were posted on December 20, 1961, that such signs were also posted on December 2, 1961.'

Competent evidence must be submitted to establish these vital elements in the prosecution's case. (People v. Hilton, 2 Misc.2d 151, 167 N.Y.S.2d 296.)

The defendant also contends that where the violation occurred in a Village and the Village has a lower speed limit than which is set by § 1180 of the Vehicle and Traffic Law, there must be testimony as to the substantial compliance by the Village with the Vehicle and Traffic regulations both as to filing with the Secretary of State of the reduced speed ordinance and as to the size of the signs, color, lettering, etc. (People v. Burmann, 307 N.Y. 871, 122 N.E.2d 752; People v. Lathrop, 3 N.Y.2d 551, 170 N.Y.S. 326, 147 N.E.2d 722; People v. Hirschfield, 41 Misc.2d 400, 402, 244 N.Y.S.2d 443, 445)

In order to prove substantial compliance the People must first prove that there was a valid Village Ordinance which was duly enacted and that they met the statutory requirements of posting and notice (People v. Churchill, 16 Misc.2d 102, 187 N.Y.S.2d 265) and that same was filed with the Secretary of State. However, the Court may take judicial notice of the filing of the ordinance under § 4511 of the CPLR which states that a Court, even an Appellate Court shall take judicial notice without request of all local laws and county acts. People v. Resciniti, 191 Misc. 719, 81 N.Y.S.2d 338, 341. People v. Zambito, 21 Misc.2d 815, 194 N.Y.S.2d 724. These cases were decided based upon § 344-a of the CPA which has since been incorporated in § 4511 of the CPLR. This must be distinguished however, for the Court cannot take judicial notice of compliance with statutory requirements as to posting and notice. Competent testimony must be taken in this area. (People v. Hilton, supra; People v. Zambito, 21 Misc.2d 815, 817, 197 N.Y.S.2d 724, 727.)

The statutory rules for posting and notice of speed regulations are found in the Official Compilation Codes, Rules and Regulations of the State of New York, Vol. 15A, Motor Vehicles. Part 208 thereof (15 NYCRR 208.1 et seq.) based upon statutory authority from Vehicle and Traffic Laws § 1680, contains rules for speed regulations signs. The only testimony offered in this case was that there are signs posted on all main arteries entering the Village of Sands Point which state 'Incorporated Village of Sands Point, speed limit 30 MPH'. This testimony does not, among other things clearly indicate what kind of speed limit was set; i. e., was it a linear limit, which is the limit on a specific highway; or was it an area limit, which covers a specific area. From the foregoing we might reasonably infer that the intention of the Village was to set an area speed limit, but in any event, the police officer failed to testify regarding any compliance with the posting Regulations.

All speed limit signs must be posted on the right side of the road, 30"' above the crown of the road and be at least 250' from any obstruction to its view from the road. The following is the type of sign used at the entrance to an Area Speed Zone and is described herein as an example of the regulations concerning a particular sign. It may serve as a guide as to what descriptive testimony concerning signs should contain.

'The description of an R 10 sign is found in § 280. It is a 36"' X 48"' sign with a 3/8"' margin and a 5/8"' border. It is to be painted with black letters on white reflectorized paint. The first line should state the...

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5 cases
  • People v. Mayoue
    • United States
    • New York Court of Special Sessions
    • 20 Abril 1966
    ...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. In People v. Ryan, 32 Misc.2d 800, 220 N.Y.S.2d 428 (Co.Ct., Orleans Co. 1961) a conviction for spe......
  • People v. Cooper
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    ...Law sec. 1110 courts had to wrestle with the problem of quality of evidence and presumptions of compliance with law, People v. Salzburg, 47 Misc.2d 866, 263 N.Y.S.2d 415 (County Court, Nassau Co., 1965), People v. Drachenberg, 49 Misc.2d 791, 268 N.Y.S.2d 462 (Justice Court, Town of Oakfiel......
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    • New York Supreme Court
    • 28 Septiembre 1965
  • People v. Goldsmith
    • United States
    • New York Villiage Court
    • 28 Agosto 1981
    ...the statutory requirements of Section 1680 of the Vehicle and Traffic Law had been met. As was stated in the case of People v. Salzburg, 47 Misc.2d 866, 263 N.Y.S.2d 415, while the court can take judicial notice of the Village Ordinance it cannot take judicial notice of compliance with the ......
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