People v. Amabile

21 Misc. 2d 951 | New York Court of Special Session | 1960

Benjamin Gassman, P. J.

The defendant was charged with operating a vehicle on the Hutchinson River Parkway between Pelham Bay Road and Gun Hill Road at the rate of 50 miles per hour, in a 40-mile-per-hour zone, in violation of section 60 of article 6 of the Traffic Regulations adopted by the Traffic Commissioner of the City of New York. He was found guilty and was fined $10 or, in the alternative, to be imprisoned for two days.

On this appeal he urges that his guilt was not established beyond a reasonable doubt and that the People failed to establish what the maximum speed limit was on Hutchinson River Parkway.

The police officer testified that he clocked the defendant for a distance of three-tenths 'of a mile at the rate of 50 miles per hour. The defendant, on the other hand, testified that he travelled at the rate of between 35 and 40 miles per hour and that at the time the officer pulled alongside of him, he was traveling at less than 35 miles per hour. On this conflicting testimony, the Magistrate found that the defendant travelled at the rate of 50 miles per hour and we find nothing in the record to warrant the reversal of the judgment on this ground.

However, the defendant asserts that the People failed to establish the posted speed limit on Hutchinson River Parkway and that such failure of proof requires reversal of the judgment. There is no testimony in the record that any signs were posted along that parkway nor that any particular maximum speed was1 indicated thereon.

Section 534 of the New York City Charter, dealing with the Department of Parks, provides: “a The commissioner shall have power to establish and enforce rules and regulations for the government and protection of public parks and of all property under the charge and control of the commissioner, which rules and regulations so far as practicable shall be uniform in all boroughs and shall have the force and effect of law.”

In accordance with the above action, the Commissioner of Parks established the Rules and Regulations of the Department of Parks and subdivision c of section 53 thereof, as revised on February 13,1959, provides that “No person operating, driving or propelling any vehicle shall proceed at a greater than maximum or less than minimum speed indicated by signs; but in no case shall such maximum speed exceed forty miles per hour ’ \ Section 53 provides that the above quoted provision shall govern the use of Hutchinson River Parkway.

Thus, even if no signs had been posted along Hutchinson River Parkway, the maximum rate of speed could not have been in excess of 40 miles per hour. The regulation of the Park Department “ had the force of law, and appellant is presumed to have known that this law prohibited signs from being erected permitting greater speed in this location”. (People v. Love, 306 N. Y. 18, 22.)

The Magistrate having found as a fact that the defendant operated his automobile at a speed exceeding 40 miles per hour, the judgment is affirmed.

Loscalzo and Martinis, JJ., concur.

Judgment affirmed, etc.