People v. Hildebrandt

Desmond, J.

The question of law on this appeal is: may it be inferred, from the fact that a person is the owner of an automobile, that he is its driver at a particular time?

Defendant’s conviction, in a Court of Special Sessions, was for the “ traffic infraction ” (see Vehicle and Traffic Law, § 2, subd. 29) of driving an automobile at a speed illegal in a restricted speed zone (Vehicle and Traffic Law, § 56, subd. 4; § 95-c). The penalty imposed was a small fine. Police officers, to measure the speed, had used a ‘ ‘ phototraffic camera ’ ’ which takes two photos, at a set time interval apart, of a moving vehicle. The distance traveled, by the car, in that interval, from a fixed point, was the basis for a mathematical computation of the rate of speed. Defendant does not dispute the accuracy of that device and method. However, one of the results of its use, in this instance, was that the driver of the automobile was not identified by the policemen or arrested at the time, and defendant got no notice, till two weeks later, that he was charged with the offense. At the trial, there was no direct proof as to who was in fact operating the car, but simply a showing that the automobile was registered and licensed in the name of defendant as owner. We must, therefore, decide whether the Justice of the Peace, and the County Judge on the appeal, were right in holding that proof of ownership, by this defendant, was, without more, sufficient proof that it was he who was operating it at an illegal speed when the photographs were taken.

The prosecutor asserts (citing People v. Rubin, 284 N. Y. 392, hereafter discussed) that there is a “ rebuttable presumption ” in such cases that the owner is the operator. We do not agree. Speeding in an automobile is personal, individual wrongdoing, which can subject the wrongdoer to serious penalties (for the first offense a fine up to $100 and imprisonment for as long as a month [Vehicle and Traffic Law, § 70, subd. 4], and, if the conviction be the third in an eighteen-month period, mandatory revocation of the driving license [Vehicle and Traffic Law, § 71, subd. 2, par (c)]). Such “ traffic infractions ” are of the grade *400 of “ offenses ”, not felonies or misdemeanors, but they are tried like misdemeanors (Vehicle and Traffic Law, § 2, subd. 29, supra) and to them, as to “ offenses ”, there should be applicable the criminal-law rules of presumption of innocence and necessity of proof of guilt beyond a reasonable doubt (see People v. Erickson, 283 N. Y. 210; People v. Strong, 294 N. Y. 930; People v. St. Germain, 302 N. Y. 580). We are reminded, too, that speeding itself is sometimes a misdemeanor (see Public Authorities Law, § 361, subd. 1), and that the “ presumption ” of identity here indulged in would, for consistency, have to be made available in prosecutions for misdemeanors, and even felonies, committed in the operation of automobiles (such felonies are described in Penal Law, § 1053-a, and Vehicle and Traffic Law, § 70, subd. 5; such misdemeanors are described in Vehicle and Traffic Law, § 17, subd. 5; §§ 58, 68, 70, subds. 1, 5, 5-a, 6, 7, 9, and Penal Law, § 244). At least as used in criminal law, a " presumption ” is a rule of law attaching definite probative value to a specific fact, as distinguished from an “ inference ”, which is a permissive conclusion by a trier of the fact, unaided by any rule or theory of law directly applicable. In a criminal prosecution, any fact presumed must, for due process, have a natural, not an unreasonable or an unnatural, connection with.facts proven (People v. Cannon, 139 N. Y. 32, 43; People v. Pieri, 269 N. Y. 315, 324; People v. Terra, 303 N. Y. 332, 335). Although presumptions, in criminal law, need not necessarily be statutory (People ex rel. Woronoff v. Mallon, 222 N. Y. 456, 464, 465), they often take that form (see People v. Terra, supra, p. 334). For the asserted “ presumption ” which is the sole support of this conviction, there is no statutory authority, which means, at least, that the New York Legislature has not disclosed its awareness of a need for such a statutory presumption. We express no advance opinion as to the validity of such a statute if one should be enacted. Other Legislatures have acted (Penn. Stat. Ann., tit. 75, § 739; Conn. Gen. Stat., 1953 Supp., § 1039c; see, as to Ontario statutes, Regina ex rel. Collins v. Greenfield, 1954, O. W. N., p. 292). Making rules for traffic control is peculiarly a legislative job, and our Legislature has actually provided for other presumptions relating to the use of automobiles in the Vehicle and Traffic Law (see, for instance, § 11, subd. 4).

*401 Now, having ruled out any “ presumption ”, we must next decide whether the proof supports an inference by the fact trier that this defendant was driving the car. We think it is going much too far to infer the driver’s identity from the fact of ownership. We all know that many a passenger car is customarily driven at various times by various persons, we know that many a person owns more than one passenger automobile, we know that some owners are not licensed operators, and we are informed that there are outstanding in this State at least one million more automobile operators’ licenses than passenger automobile registrations.1 From all of that it follows, we think, that it is hardly a normal or ready inference or deduction that an automobile which speeds along a highway is being driven by its owner, and by no other person. Apparently, the question is a new one, but that is because speeders are usually pursued and arrested after pursuit, whereas this identity question arises because of the use of a photographic speed recorded, without pursuit or arrest. The device used may be efficient and scientifically trustworthy, its use may make pursuit and immediate arrest inconvenient or unnecessary, and highway safety may be promoted by eliminating such pursuits. But it takes more than necessity to validate a presumption in a criminal case (Tot v. United States, 319 U. S. 463, 467), and here we do not even have a presumption.

The People, not unreasonably, put their reliance on People v. Rubin (284 N. Y. 392, supra). Rubin was convicted of violating a New York City parking regulation. There was “ no direct proof that stationing of the car in violation of the ordinance was done by the defendant ’ ’ but this court held that his admission of ownership “ made out a prima facie case ”. However, we do not think this decision was meant to go so far as to make that a uniform rule for every prosecution involving an automobile. After all, parking violations are of a special sort. The car is left unattended, there is usually no one present to be arrested, and it is not unreasonable to charge to the owner an illegal storage of his vehicle in a public street. We, of course, do not repudiate the Rubin decision but we think its coverage should be limited to parking cases.

*402 The judgments should be reversed, the information dismissed and the fine remitted.

. Round figure estimate from latest available official figures.