Summary
In People v. Eurich (278 App. Div. 717, affd. 303 N.Y. 723), a village ordinance which was received in evidence without objection, was enforced although no preliminary evidence had been given that signs had been posted showing the speed limit as required by section 54 of the Vehicle and Traffic Law. If a timely objection had been made, it would have been necessary for the People to have introduced evidence of the posting of such signs before the defendant could have been convicted, but the conviction was allowed to stand in the absence of such an objection.
Summary of this case from People v. DusingOpinion
March 26, 1951.
Present — Nolan, P.J., Carswell, Adel, Wenzel and MacCrate, JJ.
Defendant appeals from a judgment of the County Court of Orange County, convicting him of a violation of section 1053-a of the Penal Law (criminal negligence in operation of vehicle). Judgment and order denying motion to set aside verdict unanimously affirmed. The finding of the jury that the appellant drove his car recklessly and in disregard of the rights of others on the road is amply supported by the evidence. ( People v. Angelo, 246 N.Y. 451, 454, 457.) It was not error to permit testimony as to the conversation in the tavern just prior to the time appellant entered his automobile. His state of mind while driving was a factor the jury could consider in determining whether he had been driving with no concern for others. The jury could find that he was intoxicated. What was said to him was no proof of intoxication, but his reply that he would drive and that he was all right tended to show that he was determined to drive in spite of his intoxication, or that he was too intoxicated to know that he was. People v. Marendi ( 213 N.Y. 600) is not applicable. Neither was it error to permit proof of the village ordinance governing speed. No objection was made to its introduction on the ground that signs had not been posted stating the speed limit in accordance with section 54 Veh. Traf. of the Vehicle and Traffic Law. The evidence as to the adoption of the ordinance and its publication was admissible. At no time during the trial was a motion made to strike out that evidence because the posting of signs had not been established, and no request was made that the jury be instructed they could not consider the speed limit fixed by the ordinance. The bill of particulars did not limit the proof which the People could offer to establish that the defendant drove at an excessive rate of speed. Assuming that the evidence as to the ordinance was erroneously received, nevertheless we would affirm. (Code Crim. Pro., § 542.)