
    The People of the State of New York, Respondent, v. David Walter Hilger, Appellant.
    County Court, Orleans County,
    March 19, 1962.
    
      Vincent D. Cardone for appellant. Franklin B. Cropsey, District Attorney, for respondent.
   J. Kenneth Servé, J.

This is an appeal from a judgment of a Court of Special Sessions, Town of Shelby, Orleans County, New York (Robert W. Brunkhorst, Justice of the Peace), rendered August 24, 1961. The defendant was convicted of an infraction of subdivision 3 section 1180 of the Vehicle and Traffic Law (speeding), and was fined $125. The appeal was argued in the Orleans County Court March 14,1962.

The defendant in his appeal affidavit urges that the conviction should be reversed because the prosecution failed to prove that the State Traffic Commission did not permit a greater speed than 50 miles an hour at the time and place where the violation was alleged to have occurred.

The pertinent part of subdivision 3 section 1180 of the Vehicle and Traffic Law provides: ‘ ‘ A rate of speed by a motor vehicle or motorcycle on any public highway in excess of fifty miles an hour except where greater speed is permitted by the state traffic commission, shall be unlawful ’ ’. This quoted language of subdivision 3 of section 1180 contains a true exception which the People as part of its case has the obligation to negative, both by pleading and proof. (People v. Smith, 192 Misc. 965, affd. 299 N. Y. 707.)

To establish the guilt of the defendant in this case it was incumbent upon the prosecution to establish that at the time and place alleged in the information the defendant was operating a motor vehicle on a public highway in excess of 50 miles an hour, and that no greater speed was permitted by the State Traffic Commission at such time and place.

The People failed to introduce, or even offer, any evidence whatsoever that the State Traffic Commission did not permit a rate of speed in excess of 50 miles an hour. The method of proof to negate the exception in subdivision 3, of section 1180, is not difficult. The People may produce and offer for admission in evidence a certificate of the State Traffic Commission. Provided the alleged violation occurred on a State highway outside of an incorporated village or city, the People may utilize the alternative method of proof and offer competent testimony as to the absence of signs erected pursuant to provisions of section 1681 of the Vehicle and Traffic Law, and thereby raise the presumption referred to in subdivision 3 of section 1180, of the Vehicle and Traffic Law.

Without any evidence on this point the prosecution has failed to establish an essential part of its case. (People v. Smith, supra; People v. Van Wierson, 15 Misc 2d 106; People v. Palumbo, 130 N. Y. S. 2d 583.) It cannot be assumed that the State Traffic Commission in accordance with law had not permitted a greater rate of speed than 50 miles an hour at the time and place alleged in the information. Guilt cannot be assumed. It must be proven.

The judgment of conviction herein is reversed, the fine remitted, and the information is dismissed.  