People v. Stephens

• Decision Date: 28 February 1967
• Citation: 277 N.Y.S.2d 567,52 Misc.2d 1070
• Parties: PEOPLE of the State of New York, Respondent, v. Robert W. STEPHENS, Defendant.
• Court: New York County Court

Page 567

277 N.Y.S.2d 567

52 Misc.2d 1070

PEOPLE of the State of New York, Respondent, v. Robert W. STEPHENS, Defendant.

Yates County Court.

Feb. 28, 1967.

Valent, Callanan & Ruger, Watkins Glen, Henry Valent, Watkins Glen, of counsel, for appellant.

Frederick M. Hunt, Dist. Atty., Yates County, for the People.

MEMORANDUM--DECISION

LYMAN H. SMITH, Judge.

This is an appeal from a judgment of conviction for speeding (sec. 1180(b), Vehicle and Traffic Law) rendered by a court of Special Sessions of the Town of Torrey, County of Yates, the Hon. Peter Jensen, Justice of the Peace, presiding on December 21, 1966. Upon conviction, the court imposed a fine in the sum of twenty-five dollars ($25.00).

The defendant contends the radar device used to measure the speed of the defendant's automobile had not been tested and that, since there was no proof in the case other than that shown on the radar graph, the conviction must fall for failure of proof.

Parenthetically, it should be noted that the defendant had blocked, to the satisfaction of the Trial Justice, any testimony by the State Police officer concerning his independent estimate of the defendant's speed.

A conviction for a speeding violation may rest upon evidence of a 'tested' radar instrument. (People v. Magri, 3 N.Y.2d 562, 170 N.Y.S.2d 335, 147 N.E.2d 728; People v. Dusing, 5 N.Y.2d 126, 181 N.Y.S.2d 493, 155 N.E.2d 393.) Thus, the prime question presented is whether the radar device was, in fact, tested or untested. The trial minutes indicate that on November 19, 1966, Trooper Demma set the radar instruments in the selected location and, prior to apprehension of the defendant, tested the radar instrument by causing a tuning fork (calibrated at 50 MPH) to be struck in front of and within the zone of influence of the radar device, which resulted in a radar speed meter reading of 50 miles per hour. This reading also appeared on the radar graph admitted into evidence. The trooper further testified that Trooper McLaughlin then drove a police test car through the radar zone of influence at fifty miles per hour and he (Demma) observed that the radar speed meter and graph both registered a speed of fifty miles per hour. These two 'tests' were repeated at the end of the tour of duty at the same location with the same results. (Cf., People v. Sachs, 1 Misc.2d 148, 147 N.Y.S.2d 801.)

Upon objection of the defendant the trial justice declared the People's offer of the test car's calibrated speed record inadmissible. No offer of proof was made as to the accuracy of the tuning fork. It is chiefly upon these grounds that the appellant now contends that there was a failure of proof as to the accuracy of the radar device. (Cf., People ex rel. McCann v. Martirano, 52 Misc.2d 64, 65, 275 N.Y.S.2d 215, 216.)

While it is unfortunate the trial justice saw fit to deny the admissibility of the speedometer calibration record and thereby to confirm the accuracy of the test car's speedometer, such absence of proof is not fatal to the instant case. As Judge Van Voorhis said in his concurring opinion in People v. Dusing (5 N.Y.2d 126, p. 131, 181 N.Y.S.2d 493, p. 498, 155 N.E.2d 393, p. 396) 'Cases involving untested speed-ometers and radar apparatus should not arise. Any objections which could be made to the introduction of evidence concerning the readings of such apparatus would be simply and easily overcome by making regular tests and keeping records of the tests in the books of the police department by which the tests were made. The offer in evidence under section 374--a of the Civil Practice Act (now, Rule 4518, CPLR) of such records indicating the routine testing of such devices would be all that is necessary'.

In the instant case this court is compelled to hold that it is more than coincidence four testings of the...