
    The People of the State of New York, Respondent, v. John Ellsessor, Appellant.
    County Court, Allegany Comity,
    January 3, 1967.
    
      
      Wayne A. Feeman for appellant. Edward F. Mergler, District Attorney (Jack T. D’Arcy of counsel), for respondent.
   William W. Serra, J.

The defendant has been convicted in the Court of Special Sessions of the Town of Scio with violating section 1111 (subd. [d], par. 1) of the Vehicle and Traffic Law of the State of New York, more particularly in driving through a red traffic control signal without stopping on the 24th day of January, 1966.

The testimony of the State Police officer is to the effect that he was proceeding in a northerly direction on New York State Highway, Route 19, in the Town of Scio, when he approached the intersection of County Road 9 and stopped behind a truck and another car at the red light. The vehicle of the defendant, then proceeding in a southerly direction on New York State Highway, Route 19, passed through the intersection while the cars were stopped and the light was red on the side of the police officer. The police officer testified that he then turned around, pursued the defendant and overtook him about three quarters of a mile southerly from the> intersection and gave him a summons for going through the red light at the intersection.

He testified that the defendant saw him as he drove by him and also that he denied going through the red light when apprehended, stating that the defendant thought it was a caution light. He testified that he then returned to the intersection and checked the signal light to determine whether it would be red for southbound traffic when it was also red for northbound traffic. That after inspecting and checking the light, he determined that it was functioning properly and that it would be red for both directions, at the same time. The defendant testified that when he went through the intersection the light was green and it changed from green to amber color and blinked three or four times. He did not look at it any more and continued on and went through it.

The lower court having found upon the testimony that the proof of the police officer was to be believed, the question is now reduced to a question of law as to whether or not the proof of the police officer is adequate in view of the cases of People v. Bates (26 Misc 2d 862 [1960]) and People v. Parker (43 Misc 2d 1081 [1964]). In the Bates case there was no proof directly of the manner of functioning of the light on the side through which it was charged the defendant had come, and the court held that the burden had not been met. In the Parher case, the police officer had observed that the traffic signal was working properly both before and after the violation and the court held this valid corroboration necessary to support the assumption that when the light facing in one direction was green, the light perpendicular to it was red. Since the police officer in this case did not see or check the functioning of the light in the direction from which the defendant was coming prior to the alleged violation, we are now then to determine whether the checking of the light after the violation at a time in close proximity with the violation is sufficient to support the conviction. It is never possible to exclude to a mathematical certainty every hypothesis of variance from the proof submitted in any case, and we are entitled to the inference, at least, that mechanical devices long in use and designed for the control of traffic be accepted as being of some continuity in function. It would be idle gesture to assume that after many years of use and design and study in the manufacture of traffic devices that every device had to be proven by engineers or experts to be infallible by test performed immediately before and after every violation. It is a reasonable inference that a traffic device which was properly functioning a matter of minutes after a violation was also properly functioning at the time of the violation. The conviction of the defendant is sustained and affirmed.  