
    The People of the State of New York, Respondent, v. A. David Ross, Appellant.
    Supreme Court, Appellate Term, First Department,
    December 12, 1963.
    
      Raphael, Searles <B Vischi (Thomas J. Burns of counsel), for appellant. Isidore Dollinger, District Attorney (Walter E. Dillon of counsel), for respondent.
   Samuel M. Gold, J.

The police officer was unable to identify the defendant as the person who had driven the speeding car and received a summons from him. He issued a summons upon the basis of an operator’s license in defendant’s name presented to him by the driver of the car.

Defendant testified that he was the sales manager for the company owning the car; that he had not driven the car or been in it at the time of the alleged offense; that he had not received the summons from the officer or even seen him before the trial; that his custom was to leave his operator’s license with the owner’s registration card in a wallet in the glove compartment of the car, which was used by other employees as well as himself; and that the first knowledge he had that he was charged with having been speeding on July 7, 1960, was obtained from a notice sent him by the court in the middle of February, 1963.

This testimony was wholly uncontradicted either by the officer’s evidence or by any legitimate inferences therefrom. Since it is not improbable, surprising or suspicious, there was no reason for denying its conclusiveness (Hull v. Littauer, 162 N. Y. 569, 572). It was not to be expected that the defendant could testify as to where he was at the time of the service of the summons in view of his testimony that he had no knowledge of the speeding charge until almost three years after the date of the offense. There was no basis here for a legal presumption that the defendant was driving the car at the time the summons was issued (People v. Hildebrandt, 308 N. Y. 397; People v. Baker, 2 Misc 2d 600).

The judgment should be reversed on the law and on the facts. Complaint dismissed and fine remitted.

Hofstadter, J. P.

(dissenting). I dissent and vote to affirm the conviction.

There were only two witnesses. The People’s witness was a motorcycle patrolman who issued the summons for speeding to the man named on the operator’s license that was presented to him on demand. It is a safe and right assumption that there was no variance in the personal description on the license and the appearance of the man to whom the officer handed the ticket.

The other witness was the defendant. The trial court disbelieved him. Considering his posture as defendant, his motive for fabrication is plain; and his testimony that his custom was to leave his operator’s license — as distinguished from an owner’s registration card — in the glove compartment of the car, challenges credulity. The trial court was not compelled to accept this testimony (People v. Weiss, 290 N. Y. 160, 170; Noseworthy v. City of New York, 298 N. Y. 76, 79-80; Piwowarski v. Cornwell, 273 N. Y. 226; Harris v. Fifth Ave. Coach Co., 132 N. Y. S. 743, 744).

Were it within our competence to resolve the factual issue de novo — which it is not — I would agree with the court’s finding. Obviously, the defendant was lying; even if a fellow employee had been the one to get the ticket, he would have told Boss about it, whose license he used. Indeed, if this case involved civil liability, defendant’s action in leaving his driving license, registration and ignition key in his car in an open parking lot would render him liable. Under these circumstances we need not stretch things “ to a filament ” to exonerate him from a mild penal imposition (a fine) for what is a grave offense in these days of multiplying traffic accidents. The automobile is a lethal agency — to speed in it is to subject others to potential loss of life and limb.

The officer’s inability to identify the defendant three years after the event (having issued 2,000 summonses in the interim) is without significance. What is significant, however, is defendant’s failure to call any witness from Ms employer’s establishment to place him elsewhere than on the Major Deegan Highway at the time of the incident.

Tilzer, J., concurs with Gold, J.; Hofstadter, J. P., dissents in opinion. Judgment reversed, etc.  