Henig v. State of New York Department of Motor Vehicles

— Proceeding pursuant to CPLR article 78 to review a determination of the respondent Department of Motor Vehicles, dated June 19, 1985, which sustained a finding of an Administrative Law Judge that the petitioner had violated Vehicle and Traffic Law § 1180 (d). Determination confirmed and proceeding dismissed on the merits, with costs. The respondent sustained its burden of proving that the petitioner violated Vehicle and Traffic Law § 1180 (d). The arresting officer sufficiently established the accuracy of the radar device by using two tuning forks and an internal calibration test before and after stopping the petitioner (see, Matter of Graf v Foschio, 102 AD2d 891). Furthermore, since the officer testified that his visual estimates had been proven to be within 3 to 5 miles per hour of actual vehicle speeds, his estimate of the vehicle’s speed in the case at bar would have been sufficient to confirm even an untested radar reading (see, People v Heyser, 2 NY2d 390, 393). Bracken, J. P., Kunzeman, Kooper and Spatt, JJ., concur.