[New York] Independent radar calibration doesn't exist (State Troopers)

[capedcrusader]

Hello I am from New York and I received a speeding ticket from a State Trooper for 77 in a 55. At a pretrial conference (where they negotiate potential pleas before allowing you to plead not guilty) I asked the prosecution for a copy of the certified calibration and was told it does not exist. I persisted and cited what I had read on the internet about certified calibration being required every so often. He told me in so many words that it basically doesn't matter and that he doesn't need to offer a calibration report on the radar gun in order to submit into evidence. The radar gun is a Stalker Dual.

When I go to court I intend to argue that the radar evidence against me cannot be used without a calibration report. What I am having trouble with is what New York section of law I can use to argue this. I know there is a law but I haven't found the actual section number.

In California from CVC 40802(c)(1), subsection (D):

(D) The radar, laser, or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility.

I need to know what the same law is in New York so that I can argue that he can't submit into evidence without the calibration report.

Also, it occurs to me that the calibration report might magically appear at trial even though he told me twice and in no uncertain terms that it doesn't exist and if it does it wouldn't matter. My second question is what is the law that covers if that should happen. It is like failure to disclose evidence to the accused or something, but basically if he decides all of the sudden he does have the report and submits it I need to know what section of the law it is that I can argue that I requested the independent calibration, was told it does not exist (even though it does in this scenario).

Thanks guys

 

[You Are Guilty]

With all due respect, you are in way over your head here. For starters, NY has no such statute. As to excluding evidence, you would need to serve a formal demand for the certificate, and if not produced, then show why it was relevant and required in your motion to compel, then, if you lose that, make a similar argument in your pre-trial motion in limine.

And that's just the tip of the iceberg. You really might want to consider speaking to a local traffic lawyer who has personal connections to the court. That's probably the best way to minimize the ticket.

Good luck.

 

[KmanStuck]

When I go to court I intend to argue that the radar evidence against me cannot be used without a calibration report. What I am having trouble with is what New York section of law I can use to argue this. I know there is a law but I haven't found the actual section number.



Thanks guys

Have you searched case law on google scholar? Annotated statutes would likely show the requirements noted in case law.

Case law is law.

You may wish to do formal discovery & get the DA to reply to that with "we don't have any". No need to compel here as the documents does not exist. Then when trial occurs, object to the first statement of speed, noting the discovery response and the case law.

If the calibration certificate appears magically, object to its introduction ~ say that you needed an expert to examine such documents & that's why you asked for it in discovery and was told it did not exist; I would also object to its introduction due to a lack of foundation for its admittance at the same time before it is introduced. If allowed into the record then you can ask for a continuance so that an expert can review the documents & ask the court to require any witnesses who have testified to be present & available for cross.
(You should ask for a continuance so that you can review the certificate in detail~this takes time, more time than is alloted at trial).

 

[FlyingRon]

Case law is law.

Case law might be law, but it might also not be relevant. Really the only particular case law that applies to New York is NY v. Struck which points out the officer must follow the test (tuning fork) procedure at the time of the citation. You can certainly ask for discovery or ask these questions at trial, but you'd be extremely lucky if the officer isn't already aware and following the proper procedure.

 

[You Are Guilty]

You may wish to do formal discovery & get the DA to reply to that with "we don't have any". No need to compel here as the documents does not exist. Then when trial occurs, object to the first statement of speed, noting the discovery response and the case law.

You are assuming a response will be provided. What happens when one isn't?

 

[capedcrusader]

Just to clarify here, are you guys saying there is no requirement in new york state for radar guns to have calibration certification? I was under the impression that almost all states have this requirement. Although, no, I cannot find it in New York State law. I am referring to the yearly+ calibration not the calibration that takes place when the unit is turned on by the trooper.

Thanks

 

[You Are Guilty]

While I do not practice traffic law, as far as I am aware, that is correct. There is a requirement to calibrate pre-shift and post-stop, and that derives from case law, not statute.

You may have some luck if you can get your hands on the manufacturer's instruction manual in an attempt to use it to show that the officer didn't operate the unit correctly (or at least as per manufacturer's reqs). The problem, which I think has been mentioned above, is that all radar operators have had visual speed estimate training, which means that the radar reading is not the primary evidence against you - the officer's "opinion" as to your speed is. The radar is just a second level of proof.

 

[capedcrusader]

You may have some luck if you can get your hands on the manufacturer's instruction manual in an attempt to use it to show that the officer didn't operate the unit correctly (or at least as per manufacturer's reqs). The problem, which I think has been mentioned above, is that all radar operators have had visual speed estimate training, which means that the radar reading is not the primary evidence against you - the officer's "opinion" as to your speed is. The radar is just a second level of proof.

Yes, the supporting deposition states that the charge was based on the officer's direct observation and the speed was verified by radar. The ticket states an arrest type of "2 - RADAR."

I did download a copy of the Stalker Dual manual from their website:
Stalker DUAL and DUAL SL Operator's Manual
http://www.stalkerradar.com/pdf/dual_manual.pdf

I go to court this evening so I'll try that. Also there was a car in front of me and when I was pulled over the car in front of me pulled over as well. I don't know who was in the car in front of me. I think they expected a ticket as they waited until the trooper came to my window and then walked back to her car. The prosecutor says there is no video evidence so I'll have to question the trooper about this in an attempt to establish doubt.

The manual says (from page 32 or page #34 in indexed pdf format) that a successful prosecution basically depends on seven points, one of them being the following

7. The vehicle was out-front, by itself, nearest the radar when the reading was obtained.

So if I can establish there was a car in front of me I guess that could establish reasonable doubt. The problem is I only have my word unless she put that in her notes.

I plan to object to the introduction of the radar report regardless just because I think there should be some independent calibration required. Based on the lack of legal backing for this in New York I expect to be overruled but I'm going to object anyway.

 

[capedcrusader]

An update on this issue. The charge was dismissed in the interest of justice.

I went to court this evening and they give you a number and you wait for another pretrial conference with the prosecutor before the actual trial. This conference was the same as the first. We discussed the same things but this time he offered me a better 1110 (a) which is "Failure to Obey Traffic Control Device" and carries with it two points. It is still a moving violation. I refused and was scheduled for trial. Everyone else (and I mean everyone) took the plea. After all those cases were accepted by the court and it was practically empty (except for a parking issue) my case was called and the prosecutor told the court that the officer is currently on duty and unable to attend the proceeding, so the judge dismissed in the interest of justice. If he hadn't I would've requested a dismissal due to lack of prosecution witness.

During pretrial the prosecutor seemed pretty confident he would win but he does this for a living so I guess he should be. I was not as confident however both times I really didn't hear a good argument from him as to the possibility of the radar having captured the car in front of me. Based on this I thought I might have a chance. He didn't seem to think so but again I really didn't hear how this could be totally discounted. He said I was rolling the dice.

This was in Putnam County, N.Y., Southeast Town Court, BTW. I was in court for about two and a half hours. Almost all of that time was sitting and waiting. They ask you to turn off your cell phones. Also everyone was friendly but a few people were reprimanded for not reading the form and bringing the money to pay. So if you go there make sure you have the money if they sent you a form saying to have it. The judge did make exceptions. The mailers they sent me say the court takes cash and personal checks but the judge said a few times that they also take credit cards but no American Express.



Here are some other details for anyone who comes across this page via Google Search and has a similar case:

The original charge against me was a 1180 (b), "21 - 30 mph over speed limit", which carries a mandatory 6 points and a fine at the discretion of the judge. I was on I-684 North and was pulled over in the section where the speed is reduced to 55 mph (from the typical 65 mph).

Be advised court fines for speeding in Putnam include a DMV surcharge and can total hundreds of dollars. Expect to pay between $100 - $400 if you're pleading out. And in addition to that New York State DMV has a driver's assessment fee for three years when you accumulate six or more points on your license:

If you receive six points on your driver record during a period of 18 months, the annual assessment is $100. The minimum amount that you must pay each year is the annual assessment. The total assessment for the three years is $300. If you receive more than six points on your driver record during a period of 18 months, the annual assessment is $25 for each point more than the original six points. The minimum amount that you must pay each year is the annual assessment. The total assessment for the three years is $75 for each point more than the original six points.

http://www.nydmv.state.ny.us/drp.htm

Here's a case I found by searching Google Scholar (thanks for the tip KmanStuck) where the North Castle town court (Westchester County) denied dismissal based on lack of external calibration:
People v. Maniscalco, 94 Misc. 2d 915 - NY: Village Justice Court 1978

http://scholar.google.com/scholar_case?case=9536092744575932164

Here's a damning New York appellate opinion from 2010 which notes the following:

Moreover, even if the proof of the calibration was inadequate, a reading from an untested radar unit, coupled with a qualified officer's visual estimate, suffices to prove the offense

People v. SUSANA, 2010 NY Slip Op 52218 - NY: Appellate Term, 2nd Dept.

http://scholar.google.com/scholar_case?case=4389506480615560401

And here's two threads on radar calibration certificates but from California, not New York:
RADAR calibration certificates required at trial?
( EDIT - This link is too long and I had to split it over two lines for the post to display properly )

https://forum.freeadvice.com/speeding-other-moving-violations-13/
radar-calibration-certificates-required-trial-429724.html

Defending Against A Ticket Based On The Calibration Certificate

http://www.expertlaw.com/forums/showthread.php?t=10680&page=1

Also -- unrelated but interesting -- here's an interesting case on right to a speedy trial in New York. Basically traffic charges alone do not guarantee right to a speedy trial. Or OK, if they do it could be 14 months according to this. I also read elsewhere that it's two years? *However* and this is interesting, if your traffic charge is criminal in nature you do get right to an actual speedy trial. Also FYI there may be some loophole in some states (and maybe even New York) where you waive your right to a speedy trial automatically when you submit a not guilty plea through the mail. I read that somewhere but I don't remember where, so FYI.
People v. Graham, 2011 NY Slip Op 21089 - NY: City Court, Criminal Court

http://scholar.google.com/scholar_case?case=8853768283841117098

Good luck to anyone in the same situation. The only other thing I can think of is what I read somewhere on the internet to request delays before trial as long as possible in the hopes the trooper has moved/changed locations by the time a trial is actually scheduled.

Thanks to everyone who posted for the help! "You Are Guilty" I love your screen name.

I have only one bad thing to say about this forum and that's that they use gray text by default and not black which makes it harder to read the posts. Also they don't respect browser font size so the posts have really small text on my screen. So I guess two. But it's awesome a forum like this is available so thanks.

 

[You Are Guilty]

You really lucked out. Oftentimes, although you are arguably entitled to a dismissal if the officer fails to appear, the court will sua sponte grant an adjournment in order to give them a second chance to show up. (Ironically, these are the same courts who will often refuse to grant the motorist a similar adjournment if it is their witness who is unavailable).

Just be aware that your dismissal was not "on the merits" - it was purely procedural. Had the officer been there, I suspect it would have been a much different result.

Glad it worked out, though.

 

[KmanStuck]

Contrary to defendant's contention, calibration records are not needed to establish the accuracy of a radar device. A device's accuracy may be established by proof that an 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]). Here, the People introduced the trooper's radar operation certificate, issued by the New York State Police. Furthermore, the trooper testified that he had conducted the appropriate tuning fork and calibration tests on the radar device. Therefore, the evidence that the trooper employed a properly calibrated radar device to measure defendant's speed at 79 miles per hour, a rate nearly identical to his visual estimate, was legally sufficient to sustain the conviction (see People v Cani, 17 Misc 3d 134[A], 2007 NY Slip Op 52167 [App Term, 9th & 10th Jud Dists 2007])....from people v susana

Just for future reference ... this is why you must attack all aspects of the officer's speed measurements, including his training... the defendant in the susana case did not adequately attack the officer's speed estimate nor attacked the radar operator certificate (I have never seen one introduced, this case is an anomaly on this point I think ~ maybe in NY they do this routinely?) ; so if you attack and are successful with both points then this case becomes distinctly different than the susana case. Of course, I could see a lower court judge relying on this case to convict & it may require an appeal.

Plus, this case is only binding on courts in its jurisdiction...a point to make if in another location.

Good cite to review.

I can see a dismissal not being allowed just due to the lack of certificate of calibration ~ as there is more evidence than just that.

 

[HighwayMan]

The calibration certificate does exist - all radar sets go to Albany twice a year to be inspected by the NYS Division of Criminal Justice Services. The prosecutor has no way to get those records routinely if the trooper doesn't show up to present them.

And the surcharge applies in ALL counties, not just Putnam.

FYI, State Troopers don't seem to show up in court very often these days. But that's another story...

 

[xero976]

Got off today

Had court today and walked in with the case law people v perlman. Officer DID show up and was successful against my Calibration Test Defense (he had training, and the device was properly calibrated). Fortunately for me, the DA provided an out of date City Speed Ordnance Document. This meant their court had no official speed limit for the road I was pulled over on. I got a ticket that was for 68 in a 35 dropped down to opening a door into traffic. $120 slap on wrist non-moving violation. Afterwords I asked the judge about my calibration test defense and he said it would NOT of flown well.

Chris

 

[You Are Guilty]

Glad it worked out, but 1) not nice to hijack someone else's post, and 2) what the heck is a City Speed Ordinance Document?

 

[xero976]

I guess its an official document for my city of Rome, NY that post all the speed limits on all the streets. It had the speed limit of the road I was pulled over on but it was out of date.