March 29, 1957
Appeal from the Court of Special Sessions, Westchester County, S. ROY PALMER, J.P.
Allen Ducker for appellant.
Joseph F. Gagliardi, District Attorney ( Warren J. Schneider of counsel), for respondent.
On this appeal from a conviction for violating subdivision 9 of section 14 Veh. Traf. of the Vehicle and Traffic Law, defendant avers that the trial court improperly admitted two certificates which purportedly attested to and established the accuracy of the scales used by the police in weighing the vehicle involved.
The District Attorney, in his memorandum in opposition, concedes that the appellant has properly set forth the applicable law in the first point of his brief in that error was committed in admitting proof of the weight of the truck over defendant's objections that it was obligatory first to prove the accuracy of the scales. ( People v. Du Shane, 125 N.Y.S.2d 9.)
In connection with this appeal, the court has consulted scientific reference material on the problem of accurate weight measuring of these large vehicles. It obviously is rather complex and involved. As is developed in the publication Fleet Owner, published by McGraw-Hill, determining the weight of a loaded truck encompasses more than proof of the accuracy of the scales. There are several basic principles of physics to be considered. There must, however, be adequate legal proof of the accuracy of the weighing devices before the other factors can be considered.
Under the circumstances, we are not considering the question of the sufficiency of the information since this, as well as other questions, will necessarily have to be passed upon by the lower court upon the retrial.
The judgment of conviction is reversed. Submit order on notice.