State v. Readding

• Citation: 160 N.J.Super. 238,389 A.2d 512
• Parties: STATE of New Jersey, Plaintiff, v. George READDING, Defendant. (Criminal)
• Decision Date: 31 May 1978
• Court: New Jersey Superior Court

Page 238

160 N.J.Super. 238

389 A.2d 512

STATE of New Jersey, Plaintiff, v. George READDING, Defendant.

Superior Court of New Jersey, Law Division,

(Criminal).

May 31, 1978.

Kevin P. McCann, Asst. County Prosecutor, for plaintiff (William P. Doherty, Jr., Prosecutor of Cumberland County, attorney).

Walter F. Gavigan, Vineland, for defendant (Thomas K. J. Tuso, Vineland, attorney).

PORRECA, J. C. C. (temporarily assigned).

Defendant was convicted in the Vineland Municipal Court for operating his motor vehicle at 63 m. p. h. in a 50 m. p. h. zone, in violation of N.J.S.A. 39:4-98. This appeal was heard De novo on the transcript of the proceedings below, pursuant to R. 3:23-8(a).

On December 3, 1977 defendant was travelling north on Lincoln Avenue in the City of Vineland when he was clocked travelling 63 m. p. h. in a 50 m. p. h. zone. Proof of defendant's speed was obtained by the use of a Doplar radar speed gun operated by a Vineland patrolman. At the trial in the municipal court the officer produced a certificate of competency with this device issued by the manufacturer.

Defendant contends, among other things, that the State has failed to adequately establish the accuracy of the radar speed gun used to clock his vehicle.

The officer testified that on the date of the alleged offense he had checked the calibration of the radar device with a serialized tuning fork cut at 50 m. p. h. No other tests were performed.

It is well established in this State that our courts will take judicial notice of the general accuracy of radar speed-measuring machines. State v. Dantonio, 18 N.J. 570, 575-583, 115 A.2d 35 (1955). Proof of the accuracy of the particular scientific measuring device used is, however, required as a prerequisite to the admissibility of the results obtained therefrom. State v. Finkle, 128 N.J.Super. 199, 207, 319 A.2d 733 (App.Div.1974), aff'd o. b. 66 N.J. 139, 329 A.2d 65 (1974) (VASCAR); Cf. State v. Johnson, 42 N.J. 146, 171, 199 A.2d 809, 823 (1964) (drunkometer); State v. McGeary, 129 N.J.Super. 219, 244, 322 A.2d 830 (App.Div.1974) (breathalyzer).

In State v. Overton, 135 N.J.Super. 443, 446, 343 A.2d 516 (Cty.Ct.1975), the court discussed three universally accepted methods of testing the accurate operation of a radar speed-measuring device:

1. By use of the internal tuning fork built into the machine itself.

2. By running a patrol car with a calibrated speedmeter through the "zone of influence" of the radar machine.

3. By use of external tuning forks calibrated at set speeds and which emit sound waves or frequencies identical to those which would come from a vehicle travelling through the radar at the same speed for which the tuning fork has been cut.

The issue in Overton was whether the external tuning fork test, alone, was sufficient to establish the accuracy of the radar unit. In answering in the affirmative the court held that readings of radar and other speed-measuring machines should be admissible if there is reasonable proof of their accuracy.

Unlike the case at bar, however, the police officer in Overton tested the radar with four different tuning forks, calibrated at 20, 40, 60 and 80 m. p. h. By his own admission, the officer in the case at bar used only a single 50 m. p. h. tuning fork the accuracy of which was not in itself established.

New Jersey case law discloses no hard-and-fast rule of thumb as to what constitutes sufficient proof of accuracy. Other jurisdictions have dealt with the question. See Annotation: "Proof by Radar or Other Mechanical or Electronic Devices of Violation of Speed Regulations," 47 A.L.R.3d 822 (1973).

The use of one or more external tuning forks in connection with other testing devices has generally been found to be sufficient proof of a radar machine's accuracy at the time of operation. State v. Cardone, 146 N.J.Super. 23, 368 A.2d 952 (App.Div.1976) (internal tuning fork, one external tuning fork, two certificates of accuracy), People v. Johnson, 23 Misc.2d 11, 196 N.Y.S.2d 277 (Cty.Ct.1960) (one external tuning fork and the driving of a test car with an uncalibrated speedometer through the machine's "zone of influence"); People v. Lynch, 61 Misc.2d 117, 304 N.Y.S.2d 985 (Cty.Ct.1969) (two external tuning forks and internal test calibration of the radar machine itself).

The use of multiple external tuning forks has been held to be sufficient evidence of the radar units accuracy, particularly where the forks themselves have been tested. Kansas City v. Hill, 442 S.W.2d 89 (Mo.App.Ct.1969) (one 35 m. p. h. fork and one 50 m. p. h. fork).

Although one jurisdiction has permitted a speeding conviction to stand where only one tuning fork was used to test the radar machine, People v. Adballah, 82 Ill.App.2d 312, 226 N.E.2d 408 (App.Ct.1967), such proof has been elsewhere held to be insufficient evidence of accuracy. People ex rel. McCann v. Martirano, 52 Misc.2d 64, 275 N.Y.S.2d 215 (Co.Ct.1966).

In People v. Martirano, supra, the court made the following observation:

" * * * In this case there is no proof that the tuning fork was accurate. It is certainly not beyond the realm of possibility that its pitch had been some way affected so that it was no longer an accurate fork. The fork is a so-called 40 m. p. h. fork and when it was used the radar unit...