People v. Susana

• Decision Date: 15 December 2010
• Docket Number: No. 2009–2430 RO CR.,2009–2430 RO CR.
• Citation: 2010 N.Y. Slip Op. 52218,29 Misc.3d 144,958 N.Y.S.2d 648
• Parties: The PEOPLE of the State of New York, Respondent, v. Julissa Diaz SUSANA, Appellant.
• Court: New York Supreme Court — Appellate Division

29 Misc.3d 144

958 N.Y.S.2d 648

2010 N.Y. Slip Op. 52218

The PEOPLE of the State of New York, Respondent,

v.Julissa Diaz SUSANA, Appellant.

No. 2009–2430 RO CR.

Supreme Court, Appellate Term, New York,

9th and 10th Judicial Districts.

Dec. 15, 2010.

OPINION TEXT STARTS HEREAppeal from a judgment of the Justice Court of the Town of Orangetown, Rockland County (Paul B. Phinney, III, J.), rendered July 23, 2009. The judgment convicted defendant, after a nonjury trial, of speeding.

Present: NICOLAI, P.J., MOLIA and LaCAVA, JJ.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a simplified traffic information with speeding (Vehicle and Traffic Law § 1180[d] ). At the nonjury trial, the arresting trooper testified that he was qualified to estimate the speed of moving vehicles to within five miles an hour of their actual speed. He stated that on the day of the incident, he was assigned to patrol the south end of the Palisades Interstate Parkway, post 667–668, which encompasses the Town of Orangetown. The trooper testified that prior to commencing his shift, he performed independent tuning fork tests of the radar in both the stationary and moving modes, obtaining results in the target window, and then, when he was moving, checked the device again with the calibrated speedometer, which verified that the radar device was working properly. He stated that he initially observed defendant's vehicle when he was running stationary radar by Exit 7. The trooper testified that, looking through his rear view mirror, he had visually estimated defendant's speed to be 80 miles per hour in a 50 miles per hour zone and then, using the radar unit, had determined that defendant's speed was 79 miles per hour. The traffic ticket issued to defendant on the date of the incident is included in the record, and contains her name, address and date of birth, the expiration date and exact numerical identification number of her operator's license, as well as the registration, ownership and description of the vehicle she was driving. Following the nonjury trial, the Justice Court found defendant guilty of speeding.

Contrary to defendant's contention, calibration records are not needed to establish the accuracy of a radar device. A device's accuracy may be established by proof that an officer, who is a qualified radar operator, conducted tests indicating that the radar was functioning properly at the time of the incident ( see Matter of Graf v. Foschio, 102 A.D.2d 891 [1984] ). Here, the People introduced the trooper's radar operation certificate, issued by the New York State Police. Furthermore, the trooper testified that he had conducted the appropriate tuning fork and calibration tests on the radar device. Therefore, the evidence that the trooper employed a properly calibrated radar device to measure defendant's speed at 79 miles per hour, a rate nearly identical to his visual estimate, was legally sufficient to sustain the conviction ( see People v. Cani, 17 Misc.3d 134[A], 2007 N.Y. Slip Op 52167[U] [App Term, 9th & 10th Jud Dists 2007] ).

Moreover, even if the proof of the calibration was inadequate, a reading from an untested radar unit, coupled with a qualified officer's visual estimate, suffices to prove the offense ( see People v. Dusing, 5 N.Y.2d 126, 128 [1959];People v. Ramaker, 9 Misc.3d 131[A], 2005 N.Y. Slip Op 51592[U] [App Term, 9th & 10th Jud Dists 2005] ). Indeed, in the case at bar, the qualified trooper's testimony that he had visually estimated the speed of defendant's vehicle, which exceeded the speed limit by more than 20 miles per hour, was alone sufficient to...