Opinion
June 25, 1984
Proceeding pursuant to CPLR article 78 to review a determination of the State of New York Department of Motor Vehicles, dated May 16, 1983, which revoked petitioner's driver's license for violating section 1180 (subd [b]) of the Vehicle and Traffic Law. ¶ Determination confirmed and proceeding dismissed on the merits, with costs. ¶ Review of the record establishes that respondents sustained their burden of proving by "clear and convincing evidence" (Vehicle and Traffic Law, § 227, subd 1), that petitioner had violated subdivision (b) of section 1180 Veh. Traf. of the Vehicle and Traffic Law by operating a vehicle at 64 miles per hour in an area posted with a 50 mile per hour limit. The arresting officer sufficiently established the accuracy of the radar device by using a tuning fork and internal calibration tests at the beginning and end of his tour of duty (see Matter of Lovenheim v. Foschio, 93 A.D.2d 986; People v. Maniscalco, 94 Misc.2d 915; People v Lynch, 61 Misc.2d 117; People v. Stephens, 52 Misc.2d 1070; Ann., 47 ALR3d 822). To the extent People v. Perlman ( 89 Misc.2d 973) may be to the contrary, it is disapproved. In addition, the police officer's estimate that petitioner's vehicle was traveling at 65 miles per hour, was in and of itself sufficient to sustain the charge ( People v. Olsen, 22 N.Y.2d 230; see, also, People v Dusing, 5 N.Y.2d 1265; People v. Magri, 3 N.Y.2d 562; People v Heyser, 2 N.Y.2d 390). ¶ Petitioner's challenge to the utilization of a clear and convincing evidence standard also must be rejected. It has been consistently held that utilization of such a standard does not operate to deny due process ( Matter of Rosenthal v. Hartnett, 36 N.Y.2d 269; Matter of Filsaime v Melton, 89 A.D.2d 604; Beck v. Melton, 54 A.D.2d 919). Titone, J.P., Lazer, Mangano and O'Connor, JJ., concur.