5 N.Y.2d 126 | NY | 1959
Lead Opinion
Defendant’s conviction in City Court of Buffalo on an automobile speeding charge (Buffalo City Ordinances, oh. 60, § 14, subd. 3) was reversed by an order which, since it does not specify “ on the law ” or “on the facts ”, must be considered a reversal on the law alone (Code Crim. Pro., § 543-a, subd. 4). The appellate court in its opinion rejected as insufficient the two types of proof offered to prove speeding. The proof of a radar reading was ruled out because, although there was some showing of a test of the radar equipment, there was no indication that the automobile speedometer against which the radar reading had been checked was itself accurate. The other proof of speeding came from two admittedly experienced and qualified police officers who from separate positions had observed defendant’s oncoming automobile. This proof also the appellate court refused to consider since, so the court held, the officers had insufficient time and opportunity to judge the rate of speed at which defendant’s car was moving.
We think this reversal on the law was improper. In People v. Magri (3 N Y 2d 562, 566) we officially recognized “the general reliability of the radar speedmeter as a device for measuring the speed of a moving vehicle ”. The accuracy of the particular piece of radar equipment used in the Magri case had, however, not been tested (or, rather, the results of the tests were not proven). For that reason we held in accordance with People v. Heyser (2 NY 2d 390) that the radar record of Magri’s speed was not of itself sufficient proof of the speeding charge. But we upheld the Magri conviction nonetheless since there was there as in the present case additional competent proof in “ the testimony of the two qualified and experienced police officers, who had adequate opportunity to observe defendant’s vehicle as it approached the radar car ” (Magri opinion, 3 N Y 2d 567).
As to' the appellate court’s holding in this case that as matter of law neither of the policemen had adequate opportunity to check the speed of defendant’s car approaching from their rear, we point again to the contrary holdings in People v. Heyser and People v. Magri (supra). The “ opportunity ” for observation by these officers was about the same as in the Magri situation. The relative positions of the policemen and the approaching car, as well as the time available for looking, etc., were factors going to the weight of the officers’ opinion testimony. But the testimony itself was not as matter of law inadmissible.
Admissibility and weight of opinion evidence and measuring device evidence in speeding cases is governed by the same rules applied in other types of eases. Qualified individuals at appropriate observation posts have always been allowed to state opinions as to speed (Fisher v. Union Ry. Co., 86 App. Div. 365; Salter v. Utica & Black Riv. R. R. Co., 59 N. Y. 631; Senecal v. Drollette, 304 N. Y. 446, 448). Radar and speedometer readings are generally admissible and may be sufficient in themselves if there be reasonable proof of their accuracy.
The order appealed from should be reversed and the case remitted to Supreme Court, Erie County, for determination of the questions of fact raised in that court (Code Grim. Pro.. § 543-b).
Concurrence Opinion
According to the testimony in this case defendant-respondent’s speed was checked by radar, which showed that he was driving at 41 miles per hour, in excess
The part of the majority opinion with which I disagree is that which bases the confirmation of the conviction of this man for speeding on the visual observations of the two police officers concerning the speed of his automobile. The majority opinion infers, perhaps, that the officers’ opinions would not have been
If this opinion evidence was enough to prove the radar to have been accurate, there is no logical reason on account of which the officers’ estimates of the speed of the car would not have been sufficient in law on which to have based a conviction without any speedometer or radar reading.
It is important to public respect for the enforcement of the speed laws that the -speed of a motorist shall be checked by speedometer or radar before he can be convicted of speeding. That has been the almost universal custom of Police and Justices’ Courts, and it seems to me that departure from it should not be sanctioned by the Court of Appeals. We should not hold that the speed of an automobile in a prosecution of this nature can be established by the observations of eyewitnesses, no matter how expert they may be, unless the speed is checked by some mechanical or electrical device. Although there was a radar reading in this case, the reasoning of the majority opinion appears to render that unnecessary inasmuch as if mere opinions of the police officers are held to be enough to establish the accuracy of the radar apparatus, they would be sufficient by themselves to prove the speed of the automobile and sustain the conviction without radar or speedometer.
For this reason alone I dissented in People v. Heyser (2 N Y 2d 390), although being bound by that decision, I voted to affirm the conviction in People v. Magri (3 N Y 2d 562). Those decisions are not authority for affirming the conviction in the present case even on the basis of how fast the police officers thought respondent was driving, inasmuch as their testimony shows that they did not have sufficient opportunity to observe the speed of respondent’s automobile. Neither officer was following the automobile. One of the officers judged its speed merely by having seen it approaching in the rear view mirror, and the other officer viewed it head on as it approached from the opposite direction while it stopped within a distance of one tenth of a mile. Looking at an automobile in the rear view
Cases involving untested speedometers and radar apparatus should not arise. Any objections which could be made to the introduction of evidence concerning the readings of such apparatus would be simply and easily overcome by making regular tests and keeping records of the tests in the books of the police department by which the tests were made. The offer in evidence under section 374-a of the Civil Practice Act of such records indicating the routine testing of such devices would be all that is necessary. By giving attention to such simple procedures, the law enforcement agencies would eliminate technical objections, save embarrassment for them and others, and promote better understanding of the necessary procedures as well as public confidence in the correctness of convictions for speeding.
I concur in the disposition of the appeal which is directed by the majority opinion, but for the reason stated in this concurring opinion.
Chief Judge Conway and Judges Dye, Fuld, Froessel and Burke concur with Judge Desmond ; Judge Van Voorhis concurs in a separate opinion.
Order reversed, etc.