People v. Stuck

• Decision Date: 04 October 1967
• Citation: 283 N.Y.S.2d 564,54 Misc.2d 811
• Parties: PEOPLE of the State of New York, Respondent, v. Rockie L. STUCK, Appellant.
• Court: New York County Court

Page 564

283 N.Y.S.2d 564

54 Misc.2d 811

PEOPLE of the State of New York, Respondent, v. Rockie L. STUCK, Appellant.

Allegany County Court.

Oct. 4, 1967.

[54 Misc.2d 812] Edward F. Mergler, Allegany County Dist. Atty., Boliver, by J. Timothy Embser, Asst. Dist. Atty., Wellsville, for the people.

George F. Francis, Cuba, for respondent.

DECISION

WILLIAM E. SERRA, Judge.

This is an appeal from a conviction for speeding in violation of Section 1180(d) of the Vehicle and Traffic Law, by driving a motor vehicle at a speed of 45 miles per hour in a 35 mile per hour zone. The conviction was had in the Court of Special Sessions of the Town of Cuba. The appeal is based upon insufficient proof of calibration of the radar and failure of proof of the speed zone limitation.

The arresting officer, Constable Osmun, testified that on the night in question the radar speed detection device was calibrated as follows: At 9:50 p.m. at 65 miles per hour, by tuning fork; at 9:50 p.m. by Officer Sweet driving through the radar beam at 35 miles per hour; at 11:15 p.m. at 65 miles per hour, by tuning fork; at 11:15 p.m. by Officer Sweet's driving through the radar beam at 40 miles per hour; at 11:45 p.m. by tuning fork at 65 miles per hour. The car and device were out of service and the car moved from 10:40 p.m. to 10:50 p.m. Officer Sweet did not testify. However, it was stipulated by the parties that his test car was properly calibrated and that the speeds in his car were as indicated in Constable Osmun's testimony, overcoming the hearsay deficiency. The defendant was arrested for speeding at 11:35 p.m. based upon the radar determination of his speed. No identification problem is presented. The rule of reasonable proof of accuracy was laid down by the Court of Appeals in People v. Dusing, 5 N.Y.2d 126, 128, 181 N.Y.S.2d 493, 497, 155 N.E.2d 393, 395. In interpreting this rule the lower courts have been drawing lines of interpretation with which this Court concurs. Based upon the test proof shown as described above the Court finds that adequate evidence of calibration of the radar equipment has been given to meet the test of reasonable proof of accuracy. See People v. Stephens, 52 Misc.2d 1070, 277 N.Y.S.2d 567; People v. Blattman, 50 Misc.2d 606, 270 N.Y.S.2d 903; People v. Martirano, 52 Misc.2d 64, 275 N.Y.S.2d 215.

As to the proof of the establishment of the speed zone, the Court took judicial notice of the establishment of the speed zone based upon a certificate...