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State v. Cardone

Decided: December 30, 1976.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PASQUALE J. CARDONE, DEFENDANT-APPELLANT



Halpern, Botter and Kolovsky. The opinion of the court was delivered by Botter, J.A.D.

Botter

[146 NJSuper Page 25] Defendant appeals his conviction for speeding (N.J.S.A. 39:4-98) based upon radar evidence. On November 25, 1975 defendant was clocked at 60 m.p.h. in a 45 m.p.h. zone. He was found guilty in the municipal court and in a trial de novo in the County Court, and was fined $15, with $10 costs. On this appeal defendant contends that, as was held in State v. Overton , 135 N.J. Super. 443, 447 (Cty. Ct. 1975), the trial judge improperly admitted certificates of calibration and accuracy of the radar machine and of a tuning fork used to test the machine. He contends that the certificates were admitted without satisfying any exception to the hearsay rule (see id.) and that, lacking competent proof of the accuracy of the radar unit, the State failed to establish defendant's guilt beyond a reasonable doubt. He urges that we announce proper guidelines for the admissibility of evidence of accuracy of radar

speed measuring devices and other instruments used by the police, such as breathalyzer machines, and that we condemn the improper presumption of validity and accuracy which lower courts accord to such machines.

Patrolman McKinley of the Northfield Police Department testified for the State. Defendant stipulated that he was a qualified radar operator. On the date involved McKinley set up the radar unit and calibrated it by an internal mechanism. This was done by a calibration switch on the machine. If calibrated internally the machine will blink and give an audible sound at 50 m.p.h. After this was done the officer tested the machine with a tuning fork. The machine showed a calibration reading of 50 m.p.h., which meant that it was operating properly and was properly calibrated. Over defendant's objection the trial judge then admitted in evidence the two certificates.

The first certificate (S-1 in evidence) is as follows:

CERTIFICATE OF FIELD CALIBRATION

This is to certify that the undersigned Kustom Signals Representative performed road tests and field calibration with master certified tuning forks on Kustom Traffic Radar S.N. 2961 and found all systems to be functioning properly and the unit to be accurate to specification ( MPH)

DATE 5/26/72

KUSTOM REPRESENTATIVE, /s/ James R. Rawling

The above tests were performed in the presence of:

NAME & TITLE, Sgt. Robert V. Webb

OF THE DEPARTMENT, Northfield

The second certificate (S-2 in evidence) is ...


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