People v. Farrell

137 Misc. 2d 926, 523 N.Y.S.2d 383, 1987 N.Y. Misc. LEXIS 2738
CourtDobbs Ferry Justice Court
DecidedDecember 8, 1987
StatusPublished

This text of 137 Misc. 2d 926 (People v. Farrell) is published on Counsel Stack Legal Research, covering Dobbs Ferry Justice Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Farrell, 137 Misc. 2d 926, 523 N.Y.S.2d 383, 1987 N.Y. Misc. LEXIS 2738 (N.Y. Super. Ct. 1987).

Opinion

OPINION OF THE COURT

Herbert Rosenberg, J.

At the trial of defendant on a charge of violating section 1180 (d) of the Vehicle and Traffic Law, defendant moved to exclude certain exhibits offered by the People and the court reserved decision as to the motion and as to the verdict. This is now a decision on the motion and a verdict.

Defendant was charged with operating his automobile at a speed of 41 miles per hour on Belden Avenue in Dobbs Ferry, which is zoned 25 miles per hour. At the trial Officer Palfy testified that on March 25, 1987 his patrol vehicle was parked in a driveway facing Belden Avenue, that he observed defendant approaching and estimated defendant’s speed at 40 miles per hour, that he then activated the radar unit in his patrol car and it read 41 miles per hour. Officer Palfy stopped defendant’s vehicle and issued a summons.

Officer Palfy testified that he had been a police officer since 1976 and has performed extensive patrol duty, that he had been trained by the Division of Criminal Justice Services as a certified radar operator in 1974 as a member of the Sheriff’s Department and again in 1981 while a police officer and that he has been recertified in 1983, 1985 and 1987, that as part of this training he had also been taught to estimate speeds visually and constantly tests himself against radar and other speed-measuring devices and estimates speeds with less than a five-mile-per-hour error.

Officer Palfy testified further that on March 25, 1987 he placed his patrol vehicle at several locations (including Belden [928]*928Avenue) and at each location he tested the radar unit by (i) a light test which checks the functioning of the radar unit, (ii) an internal calibration test made by testing the circuitry which, when activated, should, and did, cause a reading of 32 miles per hour, (iii) two tuning fork tests made by striking the two tuning forks, calibrated to register 35 miles per hour and 65 miles per hour, respectively, and noting the radar readout of 35 and 65 miles per hour, respectively. In addition several times on that day Officer Palfy checked the radar readout against the calibrated speedometer of a moving police vehicle.

Officer Palfy then offered a document entitled "Authentication of Records of Dobbs Ferry Police Department Pursuant to CPLR 4518”, which consists of a notarized affidavit of Lt. Frank Perilli of the Dobbs Ferry Police Department (the Perilli Affidavit) and which states, among other things, the following:

"1. * * * This Affidavit is made to authenticate the annexed copies of official records of [the Dobbs Ferry Police] Department, which are to be offered in evidence pursuant to Section 4518 of the Civil Practice Law and Rules.

"2. Annexed are copies of original records made in the regular course of business by the persons or organizations whose regular course of business was to make such records, and received and held in the custody of affiant in the regular course of business of the Dobbs Ferry Police Department. Said copies have been compared by affiant with the original records and are hereby certified to be true and complete copies thereof.”

Annexed to the Perilli Affidavit are copies of a number of documents, the relevant ones being the following:

A. A "Certification Pursuant to CPLR 4518 of Records Maintained in the Regular Course of Business” dated February 10, 1987 made by Edward L. Reynolds, Director, Highway Safety Unit, Bureau for Municipal Police, New York State Division of Criminal Justice Services (the Reynolds Certificate). Attached to the Reynolds Certificate are copies of three test reports (the Test Reports), which will be described. Reynolds certifies that the copies of the Test Reports annexed to the Reynolds Certificate are exact photocopies of the original records of the Bureau for Municipal Police which are in his possession, custody and control, that the three Test Reports were made by an employee of the Bureau for Municipal Police in the regular course of the Bureau’s business, that the Test [929]*929Reports were made at the time of the tests and that it was in the regular course of the Bureau for Municipal Police’s business to make such Test Reports at the time of a test or a reasonable time thereafter and to report the results of said tests to the police agency which requested it. The three Test Reports consist of (i) a certification of calibration dated February 5, 1987 which certifies as to the testing on January 28, 1987 of the radar unit and the tuning forks used in Officer Palfy’s patrol vehicle, (ii) the actual radar test dated January 28, 1987, and (iii) the certificates of accuracy for the tuning forks dated January 28, 1987.

The photocopy of the Reynolds Certificate which was attached to the Perilli Affidavit showed evidence that the Reynolds Certificate contained a seal, and Officer Palfy testified that the original Reynolds Certificate, and the copies of the Test Reports attached to it, were in the possession of the Dobbs Ferry Police Department, as was attested in the Perilli Affidavit.

B. A copy of a radar activity log made by Officer Palfy on March 25, 1987, the date of the alleged violation, showing the light, internal calibration, and tuning fork test results at the beginning of Officer Palfy’s tour and that all functions checked during six additional tests made during the tour of duty, the locations where Officer Palfy patrolled, and the details of six summonses issued on that date.

C. Copies of four certificates to the effect that Officer Palfy is certified as a "Doppler Traffic Radar Operator” (the Radar Operator Certificates). The first of these certificates is dated December 4, 1981 and it, together with the three renewal certificates, covers the entire period from December 4, 1981 to date. These certificates were also issued by the Bureau for Municipal Police, are signed by its commissioner and contain the seal of the Bureau for Municipal Police.

Defendant objected to the admission into evidence of the Perilli Affidavit and all of the copies of documents attached to it. He claims that the copy of the Reynolds Certificate and the Test Reports violate the best evidence rule. He objects to the radar activity log as constituting "material prepared solely for litigation rather than a business record” and to the Radar Operator Certificates as being "not self-authenticated” and without a proper foundation. Accordingly, defendant argues, there is insufficient evidence as to defendant’s guilt and the court should acquit. Since the court reserved decision on the [930]*930motion when it was made, the defendant also testified in his defense that he did not exceed the speed limit. During his testimony defendant gave evidence as to the appearance of other persons which, it appears, was not correct and which defendant subsequently retracted and modified.

In light of the numerous objections to the various documents, the court will address each one separately.

1. THE REYNOLDS CERTIFICATE AND THE TEST REPORTS

As stated in the Reynolds Certificate, Reynolds was Director of the Highway Safety Unit of the Board for Municipal Police, which in turn is part of the State of New York, Division of Criminal Justice Services. This Division was established pursuant to Executive Law § 835 et seq., and it performs numerous functions relating to law enforcement, including the promulgation of standards with respect to radar use and the testing of equipment for municipal police departments.

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Bluebook (online)
137 Misc. 2d 926, 523 N.Y.S.2d 383, 1987 N.Y. Misc. LEXIS 2738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-farrell-nyjustctdobbsfe-1987.