People v Schnitzler (Moses)

[*1] People v Schnitzler (Moses) 2012 NY Slip Op 52288(U) Decided on December 10, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., IANNACCI and LaSALLE, JJ
2011-1310 OR CR.

The People of the State of New York, Respondent,

against

Moses Schnitzler, Appellant.

Appeal from a judgment of the Justice Court of the Town of Wallkill, Orange County (Joseph Owen, J.), rendered April 1, 2011. The judgment, after a nonjury trial, convicted defendant of speeding.

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial in the Justice Court, defendant was convicted of speeding (Vehicle and Traffic Law § 1180 [d]). On appeal, defendant contends that the proof was legally insufficient to support his conviction.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we are of the opinion that the proof was legally sufficient to establish defendant's guilt of speeding beyond a reasonable doubt. Radar readings are generally admissible and may independently be sufficient to prove a violation of Vehicle and Traffic Law § 1180 (d) if there is reasonable proof of the device's accuracy (see People v Dusing, 5 NY2d 126, 128 [1959]). A radar device's accuracy may be established by proof that a police officer, who is a qualified radar operator, conducted tests indicating that the radar was functioning properly at the time of the incident (see Matter of Graf v Foschio, 102 AD2d 891 [1984]; People v Goess, 34 Misc 3d 152[A], 2012 NY Slip Op 50303[U] [App Term, 9th & 10th Jud Dists 2012]; People v [*2]Susana, 29 Misc 3d 144[A], 2010 NY Slip Op 52218[U] [App Term, 9th & 10th Jud Dists 2010]). Calibration records are not needed to establish the accuracy of a radar device (People v Goess, 34 Misc 3d 152[A], 2012 NY Slip Op 50303[U]; People v Susana, 29 Misc 3d 144[A], 2010 NY Slip Op 52218[U]). Here, the People introduced into evidence the state trooper's radar operation certificate, issued by the New York State Police. Furthermore, the trooper testified that he had conducted the appropriate calibration tests on the radar device. Thus, the trooper's testimony that, as a qualified operator, he had used a properly calibrated radar device to measure defendant's speed at a rate of 82 miles per hour in a posted 65 mile per hour zone, sufficed independently to prove a violation of Vehicle and Traffic Law § 1180 (d) (see People v Dusing, 5 NY2d at 128; People v Goess, 34 Misc 3d 152[A], 2012 NY Slip Op 50303[U]; People v Susana, 29 Misc 3d 144[A], 2010 NY Slip Op 52218[U]).

Moreover, even if the proof of the calibration of the radar was inadequate, a reading from an untested radar unit, coupled with a qualified officer's visual estimate, suffices to prove the offense, particularly if the visual estimate sufficiently corroborated the radar measurement to render "any perceived deficiency in the radar evidence . . . of no consequence" (People v Knight, 72 NY2d 481, 488 [1988]; see also People v Goess, 34 Misc 3d 152[A], 2012 NY Slip Op 50303[U]; People v Susana, 29 Misc 3d 144[A], 2010 NY Slip Op 52218[U]; People v Ramaker, 9 Misc 3d 131[A], 2005 NY Slip Op 51592[U] [App Term, 9th & 10th Jud Dists 2005]). Thus, the trooper's testimony, that he had received training to visually estimate the rate of speed of a vehicle and that he had determined defendant's rate of speed to be 80 miles per hour, which was nearly identical to the 82 mile per hour rate that the radar unit had measured, was sufficient to prove a violation of Vehicle and Traffic Law § 1180 (d).

Defendant's other contentions raised on appeal have been considered and found to be without merit (see People v Neal, 24 Misc 3d 130[A], 2009 NY Slip Op 51347[U] [App Term, 9th & 10th Jud Dists 2009]).

Accordingly, the judgment of conviction is affirmed.

LaCava, J.P., Iannacci and LaSalle, JJ., concur.
Decision Date: December 10, 2012