Defending a Traffic Ticket in New York By: Matisyahu Wolfberg, Esq. 25 Robert Pitt Drive, Suite 211 Monsey, New York, 10952 845-362-3234 info@notspeeding.com http://www.notspeeding.com/
I. Introduction to Vehicle and Traffic Law. a. Laws found in VAT at, for example http://public.leginfo.state.ny.us/menugetf.cgi?commonque RY=LAWS b. Contact me with questions and further info at www.notspeeding.com II. III. Do points transfer from out of state a. Points only transfer from Ontario and Quebec, not from New Jersey or any other state Traffic Violation Bureau Tickets TVB a. Violations received in 5 Boroughs, Rochester, Buffalo, and some jurisdictions in Suffolk County b. Administrative hearing i. Clear and convincing evidence ii. No plea bargaining iii. Administrative hearing officers lawyers, not judges c. How to plead not guilty i. On-line ii. Mail in ticket iii. Plead not guilty in person in one of the TVB offices iv. Attorney may appear for motorist, client need not appear d. How to win i. Officer is no show 2-3 times ii. Officer does not have his notes iii. Catch the officer in a mistake during trial e. Conviction rate is high i. Officer need not present written proof of radar and speedometer calibration
f. 30 days to appeal i. appeals can be initiated on-line 1. can appeal sentence and/or conviction ii. must order transcript iii. appeals are all on submission no oral arguments IV. All other courts a. Traffic violations are quasi-criminal i. Almost all violations can carry a minimum of 15 days in jail ii. Unethical to guarantee the results iii. Right to represented by retained (as opposed to appointed) counsel. iv. Right to request adjournment to retain attorney v. Speedy Trial constitutional right to have trial within 2 years 1. People v. Thorpe (see case materials) vi. Double Jeopardy 1. can t be issued 2 speeding tickets for speeding on same road, for example vii. Right to remain silent don t need to testimony b. Majority are plea bargained. c. Not guilty plea and process i. Fill out ticket and mail it in ii. Most courts will accept attorney s letter for not guilty in place of original tickets iii. State Trooper tickets 1. negotiate with District attorney or Local Prosecutor a. call court to find out who is prosecutor iv. Local officers 1. either negotiate with them directly or with local prosecutor
v. Clients need not show up 1. must have notarized affidavit authorizing attorney to appear without client and plea to a lesser charge 2. some courts require original document, some accept copy of affidavit. vi. Payment of fine 1. most courts give time to pay 2. more and more courts accept credit card 3. pay on line with government payment service 4. money order to court 5. license gets suspended if not paid on time d. Right to supporting deposition i. Most tickets today are electronic and depositions are provided at time of ticket being issued ii. If not provided at time, have 30 days to request from return date on ticket 1. officer then has 30 days to serve the deposition on defendant or attorney if represented by attorney and file and proof of service with court. 2. If motorist is represented by attorney, service must be on attorney iii. Remedy for not providing supporting deposition 1. dismissal 2. Officer can reserve ticket in form of Long Form a. However see People v. Rosenfeld 3. Some courts require motions to dismiss to be in writing with notice to the people and within 45 days of first appearance in court.
e. Trials i. People must make prima facie case 1. Read law to determine elements of violation a. After People s case, if they left out an element, make a Trial Order for Dismissal for failure to make out a prima facie case. 2. Standard of proof is beyond a reasonable doubt 3. no jury trial unless a misdemeanor a. such as aggravated unlicensed driver (driving on suspended license) b. reckless driving c. drunk driving d. driving while registration revoked V. Appeals in Courts outside of TVB a. 30 days to file Notice of Appeal b. Appealing party (usually defendant in our context) is known as Appellant i. Must order transcript and serve Prosecutor who is known as Respondent in appellate practice. ii. Must keep track of timeliness c. Appeals in NYC area (outside the TVB) in for example, Nassau County, Orange, Rockland, Dutchess and Westchester Counties i. Heard in the Appellate Term d. Appeals in other Upstate Counties such as and Sullivan i. Hear in County Court
PEOPLE v. THORPE, 160 Misc.2d 558 (1994) 613 N.Y.S.2d 795 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM THORPE, Appellant Supreme Court, Appellate Term, Second Department March 14, 1994 Appeal from the Justice Court of the Town of Goshen, Orange County, Richard S. Gillette, J. William Thorpe, appellant pro se. Francis D. Phillips II, District Attorney of Orange County, Goshen (John Goldsmith of counsel), for respondent. Page 559 MEMORANDUM. Judgment of conviction reversed on the law and facts and as a matter of discretion in the interest of justice, fine and surcharge remitted and simplified traffic information dismissed. In answer to the defendant's assertion in his affidavit of errors that his constitutional right to a speedy trial had been violated, the return of the court merely asserted that the right to a speedy trial did not apply to a traffic infraction. This assertion is incorrect, since the constitutional right to a speedy trial applies to all prosecutions (People v Wertheimer, NYLJ, June 5, 1986, at 15, col 5 [App Term, 2d & 11th Jud Dists]). Although a constitutional speedy trial claim is not waived by a guilty plea, it must be asserted in the court below
in order to preserve the issue for appellate review as a matter of law (People v Jordan, 62 N.Y.2d 825; People v Blakely, 34 N.Y.2d 311). In view of the failure of the return to give any factual data regarding defendant's claim, it cannot be known for certain whether defendant made any motion to dismiss on this ground. Even it he did not, however, it is our opinion, in view of his pro se status, that the matter should be reviewed in the interests of justice (CPL 170.40 Crim. Proc.; People v Williams, 151 A.D.2d 795, lv denied 76 N.Y.2d 744; People v Walker, 141 A.D.2d 991, 992, lv denied 72 N.Y.2d 962). In doing so, we conclude that an unexplained delay of over two years in bringing a simple traffic infraction to trial warrants dismissal (see, People v Taranovich, 37 N.Y.2d 442). DiPAOLA, P.J., COLLINS and INGRASSIA, JJ., concur. Page 560 170.40 Crim. Proc. Motion to dismiss information, simplified traffic information, prosecutor's information or misdemeanor complaint; in furtherance of justice. 1. An information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof, may be dismissed in the interest of justice, as provided in paragraph (g) of subdivision one of section 170.30 when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (f) of said subdivision one of section 170.30, such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:
(a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal on the safety or welfare of the community; (h) the impact of a dismissal upon the confidence of the public in the criminal justice system; (i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose. 2. An order dismissing an accusatory instrument specified in subdivision one in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.
PEOPLE v. ROSENFELD, 163 Misc.2d 982 (1994) 626 N.Y.S.2d 352 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NORMAN ROSENFELD, Appellant Supreme Court, Appellate Term, Second Department December 20, 1994 Appeal from the Justice Court of the Town of Wallkill, Orange County, Ray Shoemaker, J. Norman Rosenfeld, appellant pro se. Francis D. Phillips II, District Attorney of Orange County, Goshen (Anthony R. LoBiondo of counsel), for respondent. Page 983 MEMORANDUM. Judgment of conviction unanimously reversed as a matter of discretion in the interest of justice, simplified information dismissed and fine remitted. Defendant was issued a simplified traffic information which charged him with speeding in violation of section 1180 (b) of the Vehicle and Traffic Law. Defendant entered a plea of not guilty and the matter was set down for
trial on October 21, 1993. On that date the information was dismissed for failure to timely serve and file a supporting deposition. Defendant was immediately issued a new simplified information and a supporting deposition based on the same allegations. Following a trial thereon defendant was found guilty. Since the record in the case at bar fails to disclose any special circumstances, it is this court's opinion that the court abused its discretion when it permitted defendant to be tried based upon the new simplified information and supporting deposition (see, People v Aucello, 146 Misc.2d 417). Such actions, in this court's opinion, defeat the very purpose of the CPL, disregard the interests of judicial economy and, often times, render the defense of traffic matters impracticable. In view of the foregoing, the judgment of conviction should be reversed as a matter of discretion in the interest of justice (see, CPL 470.15 [3] [c]; cf., People v Nuccio, 78 N.Y.2d 102). STARK, J.P., COLLINS and LUCIANO, JJ., concur. Page 984