People v. Solomon
| Decision Date | 22 January 2013 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Jordan P. SOLOMON, Defendant. |
| Court | New York County Court |
Jeffrey Blinkoff, Carrieri & Carrieri, Mineola, for the People.
Melvyn K. Roth, Garden City, for Defendant.
Defendant is charged with speeding at 82 miles per hour in a 55 MPH zone in violation of § 1180(b) of the Vehicle & Traffic Law on August 12, 2011 at 2:00 am, traveling northbound on Route 106 in the Village of Muttontown, New York.
This case was tried to the Court on March 22, 2012, and the parties have submitted post-trial summations and briefing. The following constitutes the Court's findings of fact, conclusions of law, and decision and order.
The People showed, through the testimony of Police Officer Robert Scholl that he independently estimated defendant's speed at 80 MPH and also tracked him on laser at 80 MPH. Officer Scholl was shown to have been trained and certified as to both such independent estimates of automobile speeds and the use of both radar and laser at the Nassau County Police Academy. Further, Officer Scholl testified without contradiction that he had appropriately tested the laser device, both at the start of his tour of duty and again after issuing the ticket to defendant. Defendant stipulated that the speed limit at that location was and is posted at 55MPH.
Radar is considered a reliable device for measuring the speed of a moving vehicle.
People v. Magri, 3 N.Y.2d 562, 170 N.Y.S.2d 335, 147 N.E.2d 728, But, the Court of Appeals has not yet determined if use of a laser device is scientifically acceptable to prove a conviction; and the lower courts are divided as to that. Compare, e.g., People v. Clemens, 168 Misc.2d 54, People v. DePass, 165 Misc.2d 217, 629 N.Y.S.2d 367, and People v. Thaqui, N.Y.L.J. July 22, 1997, p. 25, col. 1. However, that is not the only basis proffered for the charge. The Police Officer's independent estimate is sufficient in itself, if found to be credible, to prove the violation. Cf. People v. Correia, 140 Misc.2d 813, 531 N.Y.S.2d 998; People v. Silverman, 25 Misc.3d 1236(A), Slip Op., 2009 WL 4432505 .
Defendant has raised 3 arguments challenging the People's case and evidence.
First, defendant argues that the police officer's independent estimate is insufficient here because it was too dark at the hour involved to do so reliably, he did so from a stationery spot (and thus could not verify his estimate against his speedometer), and his training to do such estimates was only a couple of days. The Court finds these objections unconvincing and the estimate here credible and persuasive. No evidence of the visibility that night has been presented; rather, defendant merely assumes lack of visibility due to the time. By contrast, the police officer testified, under oath, that he was fully able to see the defendant's vehicle. An independent estimate suffices in itself, whether made while moving or stationery. People v. Heyser, 2 N.Y.2d 390, 161 N.Y.S.2d 36, 141 N.E.2d 553, Correia, 140 Misc.2d at 816, 531 N.Y.S.2d 998. Defendant has not shown any deficiency in the officer's training, or provided evidence that more time was needed for such training to be effective or sufficient or that the police academy doing the training was not qualified or otherwise capable of doing it. Hence, the officer's certification by the Nassau County Police Academy is sufficient to qualify him and to give credit to his independent estimate.
Second, defendant contends that the Supporting Deposition failed to provide facts beyond those in the Simplified Information, and thus failed to give him sufficient factual information to prepare for trial. Section 100.15 of the Criminal Procedure Law provides, in pertinent part, that the "factual allegations" of the accusatory instrument "may be based upon personal knowledge of the complainant or upon information and belief", but that "every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations". In this regard, the allegations "should be given a fair and not overly restrictive or technical reading". People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233. Further, the statements must give notice of the facts and allegations in a manner which is " sufficient to prepare a defense". Id. However, in a traffic case such as this, the Supporting Deposition often does not provide much, if any, detail beyond the ticket itself; and that is not a defect as long as the Simplified Information and Supporting Deposition, even if the same, contain all of the necessary elements of the charge. Here, they stated that defendant was driving in excess of a posted speed limit in the Village, with the location, date and time specified. That is all that is needed in a speeding case such as this. People v. Worrell, 10 Misc.3d 1063(A), 2005 N.Y. Slip Op. 52111(U), 814 N.Y.S.2d 564 (Jus. Ct. Muttontown) and People v. Greenfield, 9 Misc.3d 1113(A), 2005 N.Y. Slip Op. 51518(U), 808 N.Y.S.2d 919 (Jus. Ct. Muttontown).
Finally, defendant argues that the certifications of the police officer's capabilities and of the laser's effectiveness are ineffective here since the persons who made the certifications were not produced at trial for cross-examination by defendant, and that the failure to do so requires dismissal of the case, citing Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314, and Bullcoming v. New Mexico, 564 U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610.
The Sixth Amendment of U.S. Constitution provides, inter alia, that the defendant in a criminal case has a right to confront his/her accuser, generally by cross-examination at trial. Case law under this provision, the "Confrontation Clause", has grappled with whether and when that right applies to documentary evidence relied on by the prosecution to prove the defendant's guilt, requiring the person who created or authored the documentary evidence to be produced by the People at the trial. That question is raised by the defendant's contention here.
In 1980, in Crawford v. Washington, 541 U.S. 36, 54 and 59, 124 S.Ct. 1354, 158 L.Ed.2d 177, the U.S. Supreme Court ruled that, as a general matter, the Confrontation Clause prohibits the People from simply introducing and relying on documents of a "testimonial nature" (such as forensic analyses) to establish the elements of a crime without producing the creator or author of the document for cross-examination by the defendant, even if the documents would otherwise be admissible under evidentiary rules such as the business records rule. Accord Davis v. Washington, 547 U.S. 813, 846, 126 S.Ct. 2266, 165 L.Ed.2d 224 ().
Crawford has spawned decades of debate, including in New York, over what type of documents are "testimonial" and prove the elements of the crime charged, triggering the Crawford ruling. See, e.g., People v. Encarnacion, 87 A.D.3d 81, 90, 926 N.Y.S.2d 446 ().
Early cases generally excluded documents certifying the effectiveness and proper working of equipment as ‘'nontestimonial". For example, in People v. Stevenson, 21 Misc.3d 128(A), 873 N.Y.S.2d 236 (App. Term), in affirming a conviction for driving while intoxicated based on a breathalyzer report, the Appellate Term concluded that "documents relating to the proper working condition of the breathalyzer machine were not testimonial in nature" so that the failure to call the operator and tester of the machine at trial did not violate the Confrontation Clause. Accord People v. Fisher, 9 Misc.3d 1121(A), 862 N.Y.S.2d 809, 2005 N.Y. Slip Op. 51726(U), *10 (). But even that was not clear. Cf. People v. Lebrecht, 13 Misc.3d 45, 823 N.Y.S.2d 824 (App. Term) ; People v. Kanhai, 8 Misc.3d 447, 797 N.Y.S.2d 870; People v. Orpin, 8 Misc.3d 768, 796 N.Y.S.2d 512. Consequently, confusion continued as to precisely what documentary evidence is subject to the Confrontation Clause.
Some clarification came in 2009 with the decision in Melendez–Diaz, 557 U.S. at 311, 129 S.Ct. 2527. In overruling the Massachusetts courts, the U.S. Supreme Court held that the Confrontation Clause assured the defendant in a drug case the right to cross-examine the forensic analyst who wrote a report opining that the substance seized by the police was an illegal drug (cocaine). The Court concluded that, even though the report was the result of ‘'neutral scientific testing" and would be admissible under the business records rule, it was functionally equivalent, if not identical, to live in-court testimony on the issues central to the crime charged. In doing so, however, the Supreme Court sought to limit its ruling to documents which establish the elements of the crime charged against the defendant. 557 U.S. at 318, 129 S.Ct. 2527 et seq. Further, in a footnote, the Court stated that " documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records". 557 U.S. at 312 n. 1, 129 S.Ct. 2527 (emphasis added).
Following Melendez–Diaz , the New York Court of Appeals offered its own test in People v. Brown, 13 N.Y.3d 332, 341, 890 N.Y.S.2d 415, 918 N.E.2d 927. In holding that a DNA report was ‘'not testimonial’ ... because it consisted of merely machine-generated...
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