50 Misc. 2d 606 | New York County Courts | 1966
This is an appeal from a judgment of conviction rendered by the Police Justice Court of the Incorporated Village of Floral Park for violation of Village Regulation No. 22 (speeding) as the regulation was in force prior to October, 1964. Upon conviction, the court imposed a fine in the sum of $50. The defendant contends that the People failed to prove a prima facie case. Specifically, the defendant argues that the evidence adduced did not support a finding that the radar device which was used to measure the speed of the defendant was operating correctly and it must be considered untested.
Furthermore, the defendant claims that the police officer did not testify concerning an independent estimate of the defendant’s speed.
The New York Court of Appeals in People v. Dusing (5 N Y 2d 126, 128) declared that the rule in New York is “ first, that a reading from an untested * * ° radar device is admissible but is not without more sufficient for a speeding conviction ; and, second, that the resulting deficiency in proof can be supplied by the testimony of qualified observers.” (See People v. Magri, 3 N Y 2d 562; People v. Heyser, 2 N Y 2d 390; People v. Marsellus, 2 N Y 2d 653.)
Thus, the first question presented is whether the radar device was tested or untested. A conviction for a speeding violation may rest upon evidence of a tested radar instrument. (People v. Magri, supra; People v. Dusing, supra.) The trial minutes indi
In addition to the foregoing radar testimony, Patrolman Melinski testified that he independently estimated the speed of the defendant’s vehicle.
The adequacy of this portion of the People’s case is open to question but because of the foregoing holding that the radar device was properly tested, it is not necessary to discuss the police officer’s independent estimate of the speed of the defendant’s vehicle, nor his qualifications to make that estimate.
The main thrust of the defendant’s argument is directed to the resolution of a jurisdictional question. The defendant asserts that the information herein, which charges a violation of a local regulation, is jurisdictionally defective.
In the case at bar, the information, a Uniform Traffic Ticket, charged the defendant with violation of Village Regulation No. 22. It did not charge a violation of a Vehicle and Traffic Law
Section 1600 of the Vehicle and Traffic Law provides that the Vehicle and Traffic Law shall have State-wide application and shall be uniform throughout all political subdivisions. Section 1600 also provides: 11 No local authority shall enact or duplicate any provision of this chapter as a local law, ordinance, order, rule or regulation, except that any local authority authorized to supersede any provision of this chapter may enact any such provision, in a modified or amended form. ’ ’
Section 1180 of the Vehicle and Traffic Law provides in part: ‘ ‘ 3. Whenever maximum speed limits have been established as authorized in sections * * * sixteen hundred forty-three * * * no person shall drive in excess of such maximum speed limits.” (Subd. [b], par. 3.)
Section 1643 of the Vehicle and Traffic Law provides in part: “ The legislative body of any city or village with respect to highways * * * in such city or village * * * subject to the limitations imposed by section sixteen hundred eighty-four may by local law, ordinance, order, rule or regulation establish maximum speed limits at which vehicles may proceed within such city or village, within designated areas of such city or village or on or along designated highways within such city or village higher or lower than the fifty miles per hour maximum statutory limit. No such speed limit applicable throughout such city or village or within designated areas of such city or village shall be established at less than thirty miles per hour. No such speed limit applicable on or along designated highways within such city or village shall be established at less than twenty-five miles pér hour.”
This court construes the above-quoted statutes, when read together, to mean that a village may, by local law, ordinance, order, rule or regulation, establish maximum speed limits for a designated area or street within the village, provided that section 1684 is not violated. Section 1684 is not applicable to the regulation involved in the case at bar.
Thus, this court is of the opinion that Village Regulation No. 22 is consistent with section 1180 (subd. [b], par. 3) and section 1643 of the Vehicle and Traffic Law; and that Village Regulation No. 22 is valid insofar as it is questioned herein. However, a prosecution for violation of Village Regulation No. 22 should be brought under section 1180 of the Vehicle and Traffic Law.
Thus, the ultimate question presented is whether an information which charges a specific offense is jurisdictionally defective if it cites an incorrect statute or ordinance. It has been held that where an information charges the violation of the wrong section of law, the error may be disregarded as surplusage if the information fully advises the defendant of the acts relied upon to constitute the alleged violation (People v. Adler, 174 App. Div. 301; People v. Stepski, 174 Misc. 1080; People v. Meyers, 207 Misc. 431).
In the case at bar, the information or simplified traffic ticket alleges that the defendant was speeding, 38 miles per hour in a 25-mile-per-hpur zone. The information then states that this action constitutes a violation of “ VR 22 ”, Village Regulation No. 22. This court is of the opinion that the defendant was sufficiently apprised of the alleged violation of speeding, and that the citation of Village. Regulation No. 22 was mere surplusage, and the omission of a reference to section 1180 of the Vehicle and Traffic Law is not fatal. Accordingly, the information was jurisdictionally valid.
The case of People v. Scanlan (27 Misc 2d 442) is distinguishable from the facts herein and is not inconsistent with this
Based upon the foregoing discussion of the law and facts, it is ordered that the judgment of conviction is hereby affirmed.