Opinion
June 18, 1957
Appeal from the Court of Special Sessions, Westchester County, HERBERT CHASE, J.
Ducker Feldman ( Allen Ducker of counsel), for appellants.
Joseph Gagliardi, District Attorney ( Warren J. Schnider of counsel), for respondent.
This is an appeal by the defendant-appellant Mumford from a judgment of conviction of the Court of Special Sessions of the Town of Cortlandt, rendered on January 14, 1957, convicting the defendant of a violation of subdivision 9 of section 14 Veh. Traf. of the Vehicle and Traffic Law of the State of New York, and the appellant Dazi appeals from a judgment of conviction of the same court on the same date, convicting him of a violation of subdivision 7 of section 11 Veh. Traf. of the Vehicle and Traffic Law of the State of New York. The trials were held simultaneously under a stipulation permitting the testimony in one case to be considered in the testimony of the other. The issues in each case were substantially the same and the grounds for appeal in each case are identical, and therefore in a consideration of this appeal the court has treated both cases as one.
Both cases were tried by the court without a jury and after trial each defendant was sentenced to pay a fine of $100 or 10 days in the county penitentiary. The fines were paid.
The question with which the court is here concerned is the validity of a conviction where there is either failure or insufficiency of legal proof of the accuracy of the scales used to weigh the vehicles. The alleged violations occurred on November 13, 1956. The testimony upon the trial produced by the People in support of their contention regarding the accuracy of the scales used to weigh the vehicles established that the scales had not previously been tested for a period of 12 months. No witness for the People was able to testify to the accuracy of the scales on the date of the alleged violation. A subsequent rule issued by the department in charge of the scales provides for the testing of them within a six-month period.
Upon a reading of the papers submitted on this appeal the court is of the opinion that there has been a failure to establish the accuracy of the weighing devices in view of the long period of time between the testing and the weighing of the defendants' vehicles.
Judgment of conviction in both cases is reversed, the fines remitted and the informations dismissed.
Submit order on notice.