People v. Smalley

• Decision Date: 21 October 1970
• Citation: 314 N.Y.S.2d 924,64 Misc.2d 363
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Lester N. SMALLEY, Defendant.
• Court: New York County Court

Page 924

314 N.Y.S.2d 924

64 Misc.2d 363

The PEOPLE of the State of New York, Plaintiff, v. Lester N. SMALLEY, Defendant.

Schuyler County Court.

Oct. 21, 1970.

Valent, Callanan & Wellman, Watkins Glen (William J. Wellman, Watkins Glen, of counsel), for appellant.

William N. Ellison, Dist. Atty., Schuyler County, Watkins Glen, for the People.

LISTON F. COON, Judge.

This is an appeal from a judgment of conviction for speeding pursuant to Vehicle and Traffic Law section 1180, subdivision (b) rendered in Town Court, Town of Reading, County of Schuyler on August 5, 1970. The traffic violation occurred on May 12, 1969 on State Route No. 14 which, at that time, had a maximum speed limit of fifty miles per hour.

The defendant was issued a simplified traffic information by a member of the Schuyler County Sheriff's Department who with a companion Deputy Sheriff was maintaining a radar control along the highway at that time and place. Subsequently the arresting officer filed a bill of particulars pursuant to Code of Criminal Procedure, section 147--g.

The simplified traffic information alleged, in the proper block speeding at 68 miles per hour in a 50 miles per hour zone. On the line just above, marked 'Charge (if not specified below)' appears the following: '(Radar)'. The bill of particulars, after reciting other pertinent and required information reads as follows: 'The defendant was clocked by radar traveling at a speed of 68 miles per hour at a time and place where no greater speed than 50 miles per hour was permitted by the New York State Traffic Commission.'

Upon the trial, proof was limited by the Trial Justice in such a fashion as to result in a failure of proof as to a tested radar device. (See People v. Blattman, 50 Misc.2d 606, 270 N.Y.S.2d 903). However, the People, over objection of defense counsel, were permitted to introduce the independent opinion evidence of each of the Deputy Sheriffs as to the speed which defendant was traveling. Each testified that in his opinion defendant was traveling in excess of sixty miles per hour.

The record discloses that a proper foundation was laid for this opinion evidence and that each witness had an adequate opportunity to observe and to judge the speed of the vehicle. Defendant raises no question as to the requirements for such opinion evidence and that is not an issue here.

Ordinarily the evidence presented would be sufficient to establish grounds for a conviction. Speeding convictions may be sustained upon a reading of an untested radar device plus the opinion testimony as to speed by qualified observers. (People v. Dusing, 5 N.Y.2d 126, 181 N.Y.S.2d 493, 155 N.E.2d 393). In fact, in a proper case, opinion evidence of properly qualified police officers, uncorroborated by any mechanical device is sufficient to sustain a conviction for speeding where the variance between the estimated speed and maximum permissible speed is sufficiently wide. (People v. Olsen, 22 N.Y.2d 230, 292 N.Y.S.2d 420, 239 N.E.2d 354).

It is the contention of the defendant, and hence the crucial issue in this case, that because the traffic information contained the word '(Radar)' in the block listed 'Charge' and because the bill of particulars recited only the radar reading relative to speed that the People were limited to presenting evidence based solely upon the speed measured by that device. Implicit in this is that the opinion evidence was inadmissible and should have been excluded.

The District Attorney argues that this created no such limitation. The charge was not 'radar' or 'radar speeding' but 'speeding over the limit' as marked on the information in violation of Vehicle and Traffic Law section 1180(b).

Defendant relies upon People v. Weeks, 39 Misc.2d 765, 768, 242 N.Y.S.2d 121, 125, rev'd on other grounds 13 N.Y.2d 944, 244 N.Y.S.2d 316, 194 N.E.2d 132, in which the appellate court said, 'The purpose of a bill of particulars under Section 147--g of the Code of Criminal Procedure is to amplify the violation set forth in the information and to limit the evidence.'

He further cites People v. Boback, 23 N.Y.2d 189, 195, 295 N.Y.S.2d 912, 917, 243 N.E.2d 135, 139, in which the Court of Appeals, in a traffic case in which a simplified traffic information was used, said, 'The Constitution does require that the defendant be informed of the nature of the charge and the circumstances under which he is alleged to have violated the law. But the bill of particulars * * * fulfills this function.'

Defense counsel misconstrues both the import of these statements and the purpose of a bill of particulars in a criminal action.

The purpose of a bill of particulars is to give to the defendant reasonable information as to the nature and character of the crime charged in order to prepare his defense and in order to avoid the possibility of a second indictment for the same offense. (People v. Jordan, Gen.Sess., 128 N.Y.S.2d 457).

A defendant need not be informed in a bill of particulars of the precise nature of the evidence of the prosecution or state the theory upon which it will proceed or intended to be relied upon by the District Attorney. (People v. Ricci, 59 Misc.2d 259, 298 N.Y.S.2d 637.)

The purpose of a bill of particulars is not to enable counsel to examine the People's case as on trial but to serve merely as a clarification of matter set forth in the instrument accusing him. (People v. Parkinson, 181 Misc. 603, 41 N.Y.S.2d 331.)

In fact section 147--g of the Code of Criminal Procedure states that a bill of particulars to a simplified traffic information shall contain, 'a statement, in ordinary language, Without stating items of evidence or necessarily setting forth all the elements of the...