April 2, 1957
Appeal from the Court of Special Sessions, Westchester County, J. FRANKLIN RYAN, J.P.
Thomas F. English, Jr., for appellant.
Joseph F. Gagliardi, District Attorney ( Warren J. Schneider of counsel), for respondent.
The appeal herein results from a conviction for violation of subdivision 8 of section 14 Veh. Traf. of the Vehicle and Traffic Law, which limits the weight of certain trucks when in operation on the public highways. The problem presented, which has previously confronted the court, is the validity of a conviction where there is either failure or insufficiency of legal proof of the accuracy of the scales employed.
In the instant appeal there seems to be no question that the scales were duly tested on November 23, 1955. The alleged violation occurred on September 25, 1956 — some 10 months later. The sealer of weights and measures, when asked on cross-examination whether he could testify as to the accuracy of the scales on said later date, answered that he could not. (We accept the correction of the return noted in defendant's memorandum as to the date.)
As we had occasion to comment in People v. Brandon ( 5 Misc.2d 946) the problem of accurately weighing these large trucks is rather complex and involved. No conviction lies where there has been a failure to establish the accuracy of the weighing devices to the degree required by law to establish guilt in criminal proceedings. There was here clearly such failure, particularly in view of the substantial period intervening between testing and the use. Nor can the burden of such proof be shifted to the defendant by requiring that he "disprove" the prosecution's testimony.
The judgment of conviction is set aside and a new trial ordered. Submit order on notice.