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PEOPLE STATE NEW YORK v. HAROLD J. DIONNE (06/26/69)
DISTRICT COURT OF NEW YORK, FIRST DISTRICT, SUFFOLK COUNTY
1969.NY.42195 <http://www.versuslaw.com>; 304 N.Y.S.2d 1022; 61 Misc. 2d 211
June 26, 1969
THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.HAROLD J. DIONNE, DEFENDANT
George J. Aspland, District Attorney, (Francis O'Brien of counsel), for plaintiff.
Ira P. Block for defendant.
John Copertino, J.
This prosecution under section 385 of the Vehicle and Traffic Law has been continued in order to permit the court to consider the admissibility of an opinion with respect to the accuracy of the scales used to weigh the vehicle that defendant was operating.
The People's expert can testify in detail as to the procedure followed in testing the scales in order to certify their accuracy. He cannot, however, recall the weights that were applied to the scales or what the scales read after the weights were applied to them. It is his testimony, however, that the scales are not certified unless they read within 3% of the weight applied.
The defendant contends the the People's expert must testify as to what amounts of weight were applied and what the corresponding readings on the scales were before he can testify as to the accuracy of the scales. The court disagrees.
So long as the expert can testify with minute detail as to the procedure that was followed and that the scales must have read within 3% of the weights applied, he can testify that in his opinion they were accurate at the time they were tested. As was said in People v. Crant (42 Misc. 2d 350, 352): "If the tester had taken the stand as an expert witness, it is clear that he could not have competently testified to his bald conclusion that the speedometer was substantially accurate without showing his qualifications to express such a judgment (32 C. J. S., Evidence, pp. 94-95, §§ 456-457) and without describing and justifying, at least in summary fashion, the process by which he arrived at such judgment. (Weibert v. Hanan, 202 N. Y. 328, 331; People v. Samuels, 302 N. Y. 163, 172.)"
The court is of the opinion that the witness fulfills the requirements of People v. Crant (supra). Despite the fact that the witness cannot testify as to amounts and readings, the defendant has sufficient latitude with which to cross-examine effectively. The only area closed to defendant's inquiry is whether the witness did in fact correctly calculate the differences, if any, as being within 3% of each other. It is a relatively simple matter to cross-examine as to whether the witness is capable of ascertaining whether two numbers are within 3% of each other.
Accordingly, the court rules that the witness will be permitted to express his opinion as to the accuracy of the scales in question.