New York Criminal Attorney Blog

Have you been charged in New York with “speed not prudent” by an officer who did not witness the alleged offense? Were you involved in an accident and then issued a ticket for an infraction by an officer who did not witness the accident? Judge Malone of the Justice Court of Mendon, New York, noted in People v. Genovese, that the practice whereby police officers in New York issue tickets for traffic infractions they did not witness occurs every day in lower courts across the State.

One of the most common scenarios is where an officer arrives upon the scene of an accident he did not witness and, after conducting an “investigation”, concludes that one of the drivers (or the only driver if it was a single car accident) had to be driving at a speed not reasonable and prudent and issues a traffic ticket to the “offending” driver charging him or her with violating VTL 1180(a) – “Speed Not Prudent” – which states that:

No person shall drive a vehicle at a speed greater than is reasonable
and prudent under the conditions and having regard to the actual
and potential hazards then existing.

This practice is wholly improper. First, as detailed above, a police officer cannot issue an appearance ticket for a traffic infraction not committed in his presence. Second, “[t]he mere happening of the accident because of the skidding of [driver’s car] did not warrant the conclusion that there had been negligent operation of a motor vehicle or that the statute had been violated.” Weisinger v. MacDuff, 285 A.D. 607, 611 (1st Dept. 1955). To be guilty of driving faster than is reasonable and prudent, the conduct of the driver must constitute more than mere error of judgment or simple negligence. People v. Benway, 41 Misc.2d 39 (1963) see also Hessney v. MacDuff, 284 A.D. 70, 72 (4th Dept. 1954)(Negligent operation of a motor vehicle may not be inferred merely because a car skidded or an accident happened); Fake v. MacDuff, 281 A.D. 630, 633 (4th Dept. 1953)(The fact that the car skidded or slid off the road does not, standing alone, even constitute ordinary negligence).

Continue reading " New York Speeding Tickets: Speed Not Prudent Charge Cannot Be Based Upon The Mere Happening of An Accident " »

In New York, a court cannot change, amend or otherwise alter a sentence in a criminal case without the defendant and his or her criminal defense attorney being present. Occasionally a court might attempt to change an otherwise legal sentence post sentence by signing additional probation conditions. This practice is contrary to both statutory and decisional law. The New York Criminal Procedure Law provides that “[t]he defendant must be personally present at the time sentence is pronounced.” CPL 380.40(1). It is axiomatic that a defendant has a statutory and constitutional right to be present at the time of sentencing. People v. Brown, 155 A.D.2d 608 (2nd Dept. 1989)(CPL 380.40(1) requires a defendant to be present at the time of sentence); People v. Lucks, 91 A.D.2d 896 at 897, 457 N.Y.S.2d 514 (1st Dept. 1983)(“CPL 380.40 (subd 1) is clear in its direction that a defendant be personally present at the time sentence is pronounced.”)

More importantly however, is the long-standing, clearly established, rule of law, that a court has no authority to alter a sentence in the absence of the defendant and his attorney. People v. Saperstein, 1 A.D.2d 949, 150 N.Y.S.2d 844 (1st Dept. 1956). A court’s failure to have a defendant produced at a proceeding at which the defendant’s sentence is amended, violates that defendant’s statutory right to be present at the time of sentencing. People v. Garrison, 9 A.D.3d 436, 780 N.Y.S.2d 170 (2nd Dept. 2004); see also People ex rel. Walker v. Wilkins, 23 A.D.2d 619, 256 N.Y.S.2d 810 (4th Dept. 1965)(Change of sentence out of presence of defendant and his attorney ruled invalid).
Not only must the defendant be present for all sentencing proceedings, his or her attorney must also be present. The Sixth Amendment to the United States Constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to . . . . have the Assistance of Counsel for his defense.” U.S.C.A. Const. Amend. VI. Similarly, the New York State Constitution provides in pertinent part: “In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel . . .” NY Const. Art I, § 6.

Furthermore, a defendant is afforded the aforementioned constitutional right to counsel “at the crucial stage of sentencing”. People v. Gonzalez, 43 A.D.2d 914 (1st Dept. 1974); see also, People v. Perez, 63 A.D.2d 911 (1st Dept. 1978); People v. Di Salvo, 19 A.D.2d 747 (2nd Dept 1963). Accordingly, an accused’s rights are violated if, in the absence of a waiver, he is not afforded assistance of counsel at time of sentence. People v. Sykes, 23 A.D.2d 701 (2nd Dept. 1965). Sentencing is considered a critical stage of the proceeding at which a criminal defendant has a constitutional right to be represented by counsel. U. S. v. Morales, 498 F.Supp. 139 (E.D.N.Y. 1980). The imposition of a sentence in the absence of counsel requires the vacation of the sentence. People v. Read, 134 A.D.2d 462, 521 N.Y.S.2d 85 (2nd Dept. 1987).

For more information about sentencing issues in New York, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.888AnyCrime.com.

In prior blogs I have explained that where the police choose to issue an arrestee an appearance ticket instead of detaining that person until they can see a judge, the police must thereafter file a sufficient accusatory instrument with the court on or before the return date listed in the appearance ticket. What action the courts can take where the required accusatory instrument has not been filed before the return date has not been definitively decided by the courts with some holding the court may dismiss the appearance ticket, while others have held the court must dismiss and still others have held the court cannot dismiss.
The differing holds are discussed in the following three sections.

Must Dismiss:
The Appellate Term For The Second Department Has Held
That Local Criminal Courts Must Dismiss Appearance
Tickets If Accusatory Instrument Is Not Timely Filed

The Appellate Term for the Second Department has held that dismissal of an appearance ticket is mandated if a proper accusatory instrument is not filed in relation to an appearance ticket at or before the appearance ticket return date:
"The appearance ticket is not an accusatory instrument and its filing
does not confer upon a court jurisdiction over a defendant. The
People’s failure to file a proper accusatory instrument with the court
mandates reversal and dismissal of the appearance ticket. . ."

People v. Hedick, 2002 NY Slip Op 50524U, 2 (App. Term 2nd Dept. 2002)

Numerous cases are in accord. See e.g., People v. Apollo, 10 Misc.3d 135A (App. Term 2nd Dept. 2005)(“Since there is no indication upon this record that the People filed a proper accusatory instrument with the court (see CPL 150.50), the court never acquired jurisdiction and dismissal of the summons relative to said charge is mandated.”); People v. O'Shea, 2003 NY Slip Op 51102U; 2003 N.Y. Misc. LEXIS 948 (App. Term 2nd Dept. 2003)(finding that a parking ticket is the “functional equivalent” of an appearance ticket, the court held that the case “must be dismissed” because a proper accusatory instrument had not been timely filed with the court); People v. Lowry, 184 Misc. 2d 306 (App. Term 2nd Dept. 2000)(the People’s failure to file a proper accusatory instrument mandates reversal of defendant's conviction and dismissal of the appearance ticket); People v. Peak Carting, Inc., 11 Misc.3d 4, 5 (App. Term 2nd Dept. 2005)(“This court has consistently held that after issuance of an appearance ticket, the failure to file with the court a proper accusatory instrument mandates reversal and dismissal of the summons.”).

The facts in People v. Consolidated Edison Co., 161 Misc. 2d 907 (N.Y. City Crim Ct. 1994) are similar to those encountered by countless individuals who are issued appearance tickets in New York City – their “paperwork” was not ready when they appeared on the appearance ticket return date. In the Consolidated Edison case, appearance tickets charging violations of the NYC Administrative Code were issued to the defendant (Consolidated Edison) and made returnable to the Criminal Court, Summons Appearance Part. Id. at 908.
On the specified return dates, the required accusatory instruments had not yet been filed. Counsel appearing on behalf of Consolidated Edison was informed that the defendant would be notified of the new return date. Id. This common practice was noted by the court in a footnote:
"In similar fashion, a defendant who has been served with
a desk appearance ticket (DAT) in New York County is given
a new return date by a court officer stationed outside of the
DAT Part if no accusatory instrument has been filed by the
return date."

Id. at 908 (FN 2)

Informations were subsequently filed, and the cases were placed on the court’s calendar for a newly scheduled date. Defendant filed motions to dismiss for lack of jurisdiction. Id. at 909. More specifically, defendant argued “that the failure of law enforcement agents to file accusatory instruments by the return date of the appearance ticket renders the court without jurisdiction.” Id. at 908.

The court granted defendant’s motion and dismissed all four cases holding “the continued prosecution on the same appearance ticket, accomplished by ‘adjourning’ the undocketed DAT, is impermissible. Rather, the appearance ticket, rendered a ‘nullity’ by the lapse.” Id. at 913. Not even the subsequent, but untimely filing of an accusatory instrument can save the prosecution – the case must be dismissed. The court was very clear on the dismissal requirement:
"Nor can the subsequent, untimely filing of an accusatory instrument,
in patent disregard of the mandate of CPL 150.50 (1), serve to cure
such constitutionally infirm proceedings. Rather, it must be dismissed
and, for the purposes of subsequent speedy trial motions or applications
for warrant of arrest pursuant to CPL 120.20, any recommencement
of the criminal proceeding must provide notice to the court of such
prior dismissal.

Id. at 914 (emphasis supplied)

Cannot Dismiss:
Local Criminal Court Cannot Dismiss Appearance
Ticket If Accusatory Instrument Is Not Timely Filed

While the Appellate Term for the Second Department has held the court must dismiss the appearance ticket if the accusatory instrument is not filed before the return date, the Appellate Term for the First Department has held the opposite. In People v. Durao, 3 Misc.3d 134A (App. Term 1st Dept. 2004) the court held that the law imposes no penalty on the People for their failure to comply with the requirement that a sufficient accusatory instrument be filed at or before the appearance ticket return date:
"Although section 150.50 (1) of the CPL requires that an
accusatory instrument be filed with the court at or before
the return date of the appearance ticket, the statute does
not impose any penalty upon the People for their failure
to comply with said requirement. As a result, an aggrieved
defendant has no available recourse other than, in the instances
where defendant appeared on the return date, to start the clock
running for speedy trial purposes."

Id.

See also People v. Giusti, 176 Misc.2d 377, 381 (N.Y. City Crim. Ct. 1998)(“A Criminal Court has no statutory authority to dismiss an accusatory instrument upon a failure to adhere to the requirements for desk appearance tickets in CPL 150.10.”); People v. Brisotti, 167 Misc.2d 688, 691 (N.Y. City Crim. Ct. 1995)(dismissal for an untimely filing of an accusatory instrument is not an available remedy under CPL 150.50); People v. Fysekis, 164 Misc.2d 627, 630 (N.Y. City Crim. Ct. 1995)(“Where the People do not come forward with an accusatory instrument by the return date of the DAT, even though CPL 150.50 states that they must, there is no basis for the court to dismiss the action where, as here, there is no accusatory instrument before the court.”).
In People v. Hausch, 187 Misc. 2d 202 (N.Y. J. Ct. 2001), the Tuckahoe Justice Court held that dismissal of an information is not required where the People fail to comply with the requirement that the information be filed at or before the return date of the appearance ticket. However, this decision is at odds with the numerous Appellate Term 2nd Department decisions cited above which are binding on the Tuckahoe Justice Court.

May Dismiss:
Local Criminal Court May Dismiss Appearance Ticket
If Accusatory Instrument Not Timely Filed

Finally, the Fourth Department has held dismissal is discretionary where a defendant appears in court as directed in an appearance ticket but no accusatory instrument has been filed by the officer as required by CPL 150.50(1). In Snead v. Aegis Secur., Inc., 105 A.D.2d 1059 (4th Dept. 1984), the Rochester City Court had dismissed an appearance ticket in an underlying, related criminal action against Robert Snead because an accusatory instrument had not yet been filed before Snead appeared in that court as directed in the appearance ticket. In Snead, the city court dismissed the very day the defendant appeared as instructed. The city court didn’t make him wait for hours or give him a new date.

Accordingly, where the appearance ticket is issued will determine if the court must, can’t or may dismiss the appearance ticket and underlying charges should the police officer fail to file an accusatory instrument with the court on or before the return date.