State v. Dantonio

• Citation: 49 A.L. R.2d 460,18 N.J. 570,115 A.2d 35
• Decision Date: 20 June 1955
• Docket Number: No. A--158,A--158
• Parties: , 49 A.L.R.2d 460 The STATE of New Jersey, Plaintiff-Respondent, v. Dominick DANTONIO, Defendant-Appellant.
• Court: United States State Supreme Court (New Jersey)

Page 570

18 N.J. 570

115 A.2d 35, 49 A.L.R.2d 460

The STATE of New Jersey, Plaintiff-Respondent, v. Dominick DANTONIO, Defendant-Appellant.

No. A--158.

Supreme Court of New Jersey.

Argued May 23, 1955.

Decided June 20, 1955.

Walter S. Anderson, Camden, for appellant.

Harold Kolovsky, Asst. Atty. Gen., for Respondent (Grover C. Richman, Jr., Atty. Gen., and James T. Kirk, Deputy Atty. Gen., attorneys).

The opinion of the court was delivered by

JACOBS, J.

State Troopers operating radar speedmeter equipment along the New Jersey Turnpike charged the defendant with having violated its 60-mile speed limit. The defendant was found guilty in the Municipal Court of Milltown and, after trial De novo in the Middlesex County Court, he was again found guilty. See State v. Dantonio, 31 N.J.Super 105, 105 A.2d 918 (Cty.Ct.1954). He appealed to the Appellate Division and we certified under R.R. 1:10--1.

On February 2, 1954 Troopers Armstrong, Trainor and Tripisovsky, as members of a radar team, set up their equipment along the New Jersey Turnpike. The radar equipment, which included transmitting and receiving devices as well as a calibrated speedmeter needle and a permanent graph indicating the speed of cars passing within range of the waves being transmitted, was placed on a station wagon alongside the road. Trooper Trpisovsky testified that he hooked up the power supply, tested the machinery after a warm-up period to see that it was operating properly, and observed that both the meter and the graph were at zero when no cars were within range. Troopers Armstrong and Trainor testified that after the machinery was tested they drove their cars within range and, by radio communication, notified Trooper Trpisovsky of their respective speeds; when Trooper Armstrong's car was traveling at 75 miles per hour as evidenced by his own speedometer the radar device recorded 75 miles per hour; when Trooper Trainor's car was traveling at 89 miles per hour as evidenced by his own speedometer the radar device recorded 86 miles per hour. Dr. Kopper, a qualified electrical engineer associated with Johns Hopkins University, testified that in his opinion the Troopers' radar equipment 'was properly and carefully used and that it would give an accurate indication of speed.' He testified further that there would be tolerances for errors of 'two miles plus or minus' and that any inaccuracies resulting from the placing of the equipment at the side rather than in the center of the road or from the weakening of the machinery or its power would produce lower rather than higher speed readings. See Kopper, The Scientific Reliability of Radar Speedmeters, 33 N.C.L.Rev. 343, 352 (1955). He expressed the view that it was not necessary that the operator of the radar equipment 'be an electrical engineer or have other special technical skills'; Trooper Armstrong had been operating it since February 1953 and Trooper Trpisovsky had been operating it since August 1953. Cf. Kopper, supra at 353, where the author states that 'the average person engaged in traffic control work can learn to use the radar speedmeter after about one and one-half to two hours of instruction.'

The defendant Dantonio was employed by Quaker City Bus Co. as a bus driver. He testified that about 6 p.m. on February 2, 1954 he left the toll booth at interchange No. 4 and drove onto the Turnpike. Trooper Trpisovsky testified that between 6:45 and 6:50 p.m. the defendant's bus came within range of his radar equipment and that the meter needle and the permanent graph both recorded that the bus was then traveling at the rate of 69 or light 70 miles per hour; he noted the bus license number and radioed it to Trooper Armstrong who was stationed some 500 to 600 feet ahead. Trooper Armstrong testified that he intercepted the defendant, told him that his speed had been recorded by radar, and issued a summons and complaint which charged him with traveling at 66 miles per hour in a 60-mile speed zone. Mr. Ricker, a traffic engineer employed by the New Jersey Turnpike, testified that the distance between interchange No. 4 and mile post 80 1/2, near the point where the radar equipment was set up, was 46 1/4 miles. The defendant's bus made no stops from the time it left the toll booth at interchange No. 4 to the time it was intercepted by Trooper Armstrong; the defendant testified that he was stopped by Trooper Armstrong at 'around 6:48 or 6:50' p.m.

The defendant's bus was equipped with a Tachograph which is manufactured by the Sangamo Electric Company. Mr. William S. Paine, an employee of Sangamo, described the Tachograph as 'essentially a combination of a clock speedometer, odometer and recording machine, intended to produce a record on a chart of vehicle speed in miles per hour, miles traveled, and a record of whether or not the engine of the vehicle is idling while the vehicle is stopped.' He testified that the chart indicated that the highest speed attained by the defendant's bus was approximately 61 1/2 miles per hour at 6:12 p.m.; that it had stopped at about 5:58 p.m. and thereafter at 6:41 p.m.; and that in the interim it had covered 42 miles in 43 minutes. If the Tachograph, as interpreted by Mr. Paine, was correct, then the defendant had traveled 42 miles in 43 minutes including, significantly, the time during acceleration and brakeage; if, however, the stated mileage was incorrect, as appears from Mr. Ricker's testimony, then the defendant had illegally traveled over 46 miles in 43 minutes; and if, as counsel for the defendant now seems to suggest, Mr. Paine actually misinterpreted the chart and 'erred in both the distance and the time readings by an even 5 miles' then his testimony was entitled to little weight indeed.

The County Court expressly determined (1) that the radar equipment 'was properly set up and tested for accuracy and was functioning properly and was a correct recorder of speed'; (2) that the defendant 'was exceeding the speed limit of the New Jersey Turnpike and was traveling at 66 miles per hour, as charged'; and (3) that the State had 'established the guilt of the defendant beyond a reasonable doubt.' Our function on appeal ordinarily is not to make new factual findings but simply to decide whether there was adequate evidence before the County Court to justify its finding of guilt. See State v. Glynn, 20 N.J.Super. 20, 27, 89 A.2d 50 (App.Div.1952); State v. Matchok, 14 N.J.Super. 359, 360, 82 A.2d 444 (App.Div.1951); State v. Nolan, 1 N.J.Super. 280, 282, 64 A.2d 238 (App.Div.1949). Cf. Midler v. Heinowitz, 10 N.J. 123, 89 A.2d 458 (1952); Hager v. Weber, 7 N.J. 201, 81 A.2d 155 (1951).

Although there have been no appellate decisions in our own State there have been several decisions in courts of other states and numerous articles in legal publications which have dealt comprehensively with the evidential problems presented by the use of radar speedmeters. See State v. Moffitt, Del.Super., 100 A.2d 778 (Del.Super.Ct.1953); People v. Offermann, 204 Misc. 769, 125 N.Y.S.2d 179 (Sup.Ct.1953); People of City of Rochester v. Torpey, 204 Misc. 1023, 128 N.Y.S.2d 864 (Cty.Ct.1953); People v. Katz, 205 Misc. 522, 129 N.Y.S.2d 8 (Sp.Sess.1954); People v. Sarver, 205 Misc. 523, 129 N.Y.S.2d 9 (Sp.Sess.1954); People of City of Buffalo v. Beck, 205 Misc. 757, 130 N.Y.S.2d 354 (Sup.Ct.1954); Baer, Radar Goes to Court, 33 N.C.L.Rev. 355, (1955); Woodbridge, Radar in the Courts, 40 Va.L.Rev. 809 (1955); Notes, 30 N.C.L.Rev. 385 (1952); 38 Marq.L.Rev. 129 (1954); 28 Tul.L.Rev. 398 (1954); 58 Dick L.Rev. 400 (1954); 15 Ohio St.L.J. 223 (1954); 39 Iowa L.Rev. 511 (1954); 5 Mercer L.Rev. 322 (1954); 7 Vand.L.Rev. 411 (1954); 30 Wash.L.Rev. 49 (1955); 23 Tenn.L.Rev. 784 (1955). See also McCormick, Evidence, § 170 (1954); 2 Wigmore, Evidence (3rd Ed.1940), § 417(b).

Through the years our courts have properly been called upon to recognize scientific discoveries and pass upon their effects in judicial proceedings. When fingerprint evidence was not accepted as universally as it is now, the Court of Errors and Appeals was required to deal with the contention that the trial court had erred in permitting an expert to testify as to the art of fingerprinting and its use as a means of identification; in holding that the testimony had properly been admitted Justice Minturn in State v. Cerciello, 86 N.J.L. 309, 314, 90 A. 1112, 1114, 52 L.R.A.,N.S., 1010 (E. & A. 1914), aptly said:

'In principle its admission as legal evidence is based upon the theory that the evolution in practical affairs of life, whereby the progressive and scientific tendencies of the age are manifest in every other department of human endeavor, cannot be ignored in legal procedure, but that the law, in its efforts to enforce justice by demonstrating a fact in issue, will allow evidence of those scientific processes which are the work of educated and skillful men in their various departments, and apply them to the demonstration of a fact, leaving the weight and effect to be given to the effort and its results entirely to the consideration of the jury. Stephen Dig. Ev. 267; 2 Best on Ev. 514.'

See also State v. Connors, 87 N.J.L. 419, 420, 94 A. 812 (Sup.Ct.1915); Lamble v. State, 96 N.J.L. 231, 236, 114 A. 346 (E. & A. 1921). Cf. Wigmore, supra, § 414. Today no one questions the general accuracy and effectiveness of the art, and expert proof has long been replaced by judicial notice. Lamble v. State, supra; Cortese v. Cortese, 10 N.J.Super. 152, 157, 76 A.2d 717 (App.Div.1950); Note, Fingerprints, Palm Prints, or Bare Footprints as Evidence, 28 A.L.R.2d 1115, 1119 (1953). Similarly, courts no longer require expert proof that X-ray machines, cardiographs and similar scientific devices used by the medical profession are trustworthy. See Wigmore, supra, §§ 665a, 795; Baer, supra, 361. Cf. Call v. City of Burley, 57 Idaho 58, 73, 62 P.2d 101, 107 (Sup.Ct.1936), where the court noted that 'The science of X-ray...