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PEOPLE STATE NEW YORK v. ARTHUR C. PLOUSE (08/08/68)

JUSTICES' COURT OF NEW YORK, TOWN OF OAKFIELD, GENESEE COUNTY 1968.NY.42772 <http://www.versuslaw.com>; 292 N.Y.S.2d 958; 57 Misc. 2d 439 August 8, 1968 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.ARTHUR C. PLOUSE, JR., DEFENDANT Ernest M. Found, District Attorney (Daniel M. Babcock of counsel), for plaintiff. Randolph P. Zickel for defendant. Richard D. Yunker, J. Author: Yunker


Richard D. Yunker, J.

Author: Yunker

 An information was sworn to by a peace officer on June 24, 1968 charging the defendant with speeding. The information is what is called a long-form information. It is not the short-form information which is part of the uniform traffic ticket packet. The court was informed by an attorney on behalf of defendant that a trial was requested. By arrangement with the attorney and an Assistant District Attorney July 12, 1968 was set as trial date.

On the trial date the People were represented by an Assistant District Attorney. The attorney who arranged the trial date appeared on behalf of the defendant. The defendant did not come to court with his attorney and his attorney stated that he was working nearby and could come to court if necessary but that he would prefer not to have to take time off from work for the trial. The court stated that the defendant had never appeared in court to answer this charge and that his appearance would be necessary. Thereupon the attorney for the defendant left the court and shortly after returned with defendant.

When the defendant appeared before the court he was informed of the charge against him. The defendant acknowledged that he was represented by his attorney Randolph P. Zickel. The attorney for the People stated that the People were ready for trial. The attorney for the defendant stated that the defendant was ready for trial.

No other instructions or warnings were given to the defendant before trial. Defendant was not asked to enter a plea of either guilty or not guilty before the trial and did not do so.

The opening statment was waived by the People and also by the defendant. The witness for the People was the complaining police officer. His testimony was that he was driving an automobile on the Lewiston Road toward the Village of Oakfield. Another automobile which he later learned to be operated by the defendant passed him going in the same direction. He stated he memorized the license number as BA1954. He followed the car to the Village of Oakfield according to his testimony. He stated that from the Batavia-Oakfield Townline Road to the Village of Oakfield the speedometer on the automobile which he was driving registered 90 miles per hour and did not go below 90 miles per hour during that time. He further stated that he was approximately 100 yards behind the other automobile and was not gaining on the other automobile between the Townline Road and the Village of Oakfield. He further testified that the speedometer in the automobile he was driving was not calibrated. According to his testimony he has been a police officer for 13 1/2 years. He stated that his judgment as to speed has been tested by the use of a fifth wheel which was calibrated. He further testified that he has driven cars with calibrated speedometers in police work. He further testified that he has tested his ability to judge speed by the use of radar. In his opinion he is capable of judging speed of an automobile within five miles per hour and stated that his opinion has been verified by his experience in driving automobiles with a fifth wheel which is calibrated, driving automobiles with calibrated speedometers, and in setting up and testing radar installations. He testified that in his opinion the speed of the automobile at the time it was traveling from the Townline Road to the Village of Oakfield was 85 miles per hour and that he did not believe the speedometer in the automobile he was driving was correct when it stated that the speed was 90 miles per hour. The officer further testified that there were no signs posted on the highway in question permitting a speed above 50 miles per hour.

The officer stated that the other automobile turned off Route 63 some place in the Village of Oakfield and that he stopped it and observed the license number which he had memorized when the automobile passed him. He identified the defendant in court as the driver of that automobile when it was stopped and the sole occupant of the automobile. On cross-examination the officer testified that he did not lose sight of the automobile which he stated was occupied and driven by defendant from the Townline Road to the place where he stopped it and observed the defendant as the sole occupant. He did acknowledge that he had lost sight of the automobile before reaching the Townline Road after it had first passed him and gone over the crest of a hill and that he had to speed up and caught up to the automobile in question when it reached the Townline Road.

At the conclusion of the direct testimony of the officer the defendant moved to dismiss the information because no written information had been served upon the defendant before his appearance in court. This motion was denied. The officer was then cross-examined by the defendant's attorney.

On redirect examination the officer testified that on the Monday following the alleged speeding incident he had seen the defendant at his place of work and told him that an information had been laid before me charging him with speeding and that he should appear before me on Tuesday.

The People then rested their case.

By arrangement of the defendant's attorney with the court as stated above, the defendant did not appear on Tuesday and did not appear in court until the trial date.

The defendant then moved to dismiss the information on the following grounds:

1. The defendant was not given the warning required by section 335-a of the Code ...


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