People v Silverman

[*1] People v Silverman 2009 NY Slip Op 52429(U) [25 Misc 3d 1236(A)] Decided on December 3, 2009 Just Ct, Vil Of Muttontown, Nassau County Kaminsky, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2009
Just Ct, Vil of Muttontown, Nassau County

People of the State of New York,

against

Gregory S. Silverman, Defendant.



07120043



Jeffrey L. Blinkoff, Deputy Village Prosecutor, Mineola, New York, for the People.

Melvyn K. Roth, Garden City, New York, for Defendant.

Martin I. Kaminsky, J.

Defendant is charged with speeding in violation of VTL §§1180(D) while driving a 2001 blue Jeep Northbound on Route 106 in the Village of Muttontown on October 29, 2007. The speed limit on that road is 55 miles per hour.

The case was tried to the Court. The evidence submitted showed that Police Officer Kenneth Banner of the Old Brookville Police Department, while parked facing westbound on Route 106, observed the defendant's vehicle from about 600 feet at what he estimated to be 85 miles per hour [Tr. 4-7]. He also clocked the defendant's speed with a Storker laser gun, which read 83 miles per hour [Id.]. The defendant did not testify or present other evidence; he relied instead on cross-examination of the Police Officer which defendant contends shows that it is not possible to conclude beyond a reasonable doubt that he was speeding.

At the conclusion of the trial, the Court reserved decision and requested that the brief the following issues: [a] did the People prove the time of the incident? [b] did the People sufficiently prove that the laser device was reliable and adequately tested to sustain the People's case?; [c] was the testimony of the Police Officer sufficient to prove the People's case?

Having received and reviewed the parties' briefs, the Court rules:

1. The People have sufficiently proven the time of the incident and that Police Officer Banner apprehended defendant there. The Police Officer testified that his tour of duty was 8:00 am to 6:00 pm on the date in question [Tr. 3]. The ticket is marked 14:17; but the officer was asked and testified about the events by reference to "2:17" [Id.]. Given the time of the officer's [*2]tour of duty, this discrepancy between what the parties refer to "military time" and "civilian time" is immaterial.

2. The People have also failed to sufficiently prove their case by the laser evidence proffered. The New York Court of Appeals has not yet recognized a laser clocking devise as alone sufficient to prove guilt beyond a reasonable doubt; and the lower courts have reached contradictory conclusions as to it. Compare People v. Clemens, 168 Misc 2d 54, 57 (concluding that such devices are reliable) with People v. Thaqui, NYLJ 7/22/97 P. 25, col. 1 (concluding that such devices are not reliable). See also People v. DePass, 165 Misc 2d 217, app dism., 169 Misc 2d 418 (App Term 1st Term).

However, that disagreement does not preclude the Court from considering evidence of laser clocking (and determining what weigh, if any, to give it), particularly when combined with other probative evidence of guilt. People v. Knight, 72 NY2d 481, 487-88; People v. Correia, 140 Misc 2d 813, 815-16. Accord People v. Olsen, 22 NY2d 230, 231; Mtr. Of Graf v. Foschio, 102 AD2d 891, 892. In particular, where a tracking device has been reliably tested, it may be considered together with reliable evidence of an officer's independent evaluation of speed. Mtr of Hall v. Swartz, 61 AD3d 868: Howe v. Adduci, 226 AD2d 377 (2nd Dept.), app den, 88 NY2d 814.

The issue here, however, is not whether there is such evidence, but rather whether the evidence submitted is sufficiently reliable to prove guilt beyond a reasonable doubt.

The People elicited testimony from the officer that the laser device was working properly, and that he testified it before and after his tour of duty [Tr. 9]. The Police Officer also explained that the laser device is "self testing" [Tr. 16]. But, no other or corroborative evidence was submitted from which the Court can determine beyond a reasonable doubt that the laser device was properly functioning, or even how it operates. Indeed, on cross examination, the officer acknowledged that he was not aware when the device had last been certified or taken out of service and tested [Tr. 16]. Without some corroborative evidence of the reliability of the device (e.g. certification; details of test results; dates, place and time of testing; or other documentation of its proper functioning), it is not possible to know, much less beyond a reasonable doubt, that the laser reading was reliable. Cf. the testing for the radar device in Correa, 140 Misc 2d at 816.

3. The People have also failed to sufficiently prove their case by the independent estimate of the Police Officer. A speeding case can be proven beyond a reasonable doubt based solely on an independent estimate of speed by a properly trained and experienced Police Officer. People v. Heyser, 2 NY2d 390; Correia, 140 Misc 2d at 816.

The Police Officer testified that he was trained in making independent estimates and has been "certified" to do so "since about 1995" [Tr. 6]. Since that time, he has been working on highway patrol, and has been making independent estimates of speed in that capacity [Tr. 7]. But, the testimony did not show where the Police Officer was trained, for how long, what the training consisted of, and what particular certification the officer received. It would also be helpful to know whether his independent estimates have been accepted or rejected in other matters. The Court does not question the credibility of the Police Officer. But, without such details, the Court finds the testimony to be insufficient to prove guilt beyond a reasonable doubt,

Hence, defendant is found not guilty of the violation charged.

So Ordered.

Dated: December 3, 2009 [*3]

Muttontown, New York

/s/ Maritin I. Kaminsky

Martin I. Kaminsky

Village Justice