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Articles Posted in Legal Terms Defined

The New York State Legislature has acknowledged that CPL140.10(1)(b) prohibits an officer from making an arrest or issuing an appearance ticket for a traffic infraction not committed in his or her presence and has determined that there are only three specific traffic infractions where an officer should be allowed to arrest or issue an appearance ticket despite the fact that said infractions were not committed in the officer’s presence.

Specifically, the New York State Legislature has authorized an officer to arrest or issue an appearance ticket in lieu of arrest where the motorist leaves the scene of an incident involving property damage in violation of VTL 600(1) or leaves the scene of an incident involving injury to certain animals in violation of VTL 601.

Indeed, VTL 602 states in pertinent part that an officer may arrest “in case of violation of section six hundred and section six hundred one, which in fact have been committed, though not in his presence, when he has reasonable cause to believe that the violation was committed by such person.” Therefore, with regard to VTL 600(1) and VTL 601, both non-criminal traffic infractions, the Legislature has determined that officers may arrest or issue appearance tickets even where said infractions are not committed in the officer’s presence.

Additionally, the Legislature has authorized an officer to arrest where the motorist has committed the violation of Driving While Ability Impaired by alcohol in violation of VTL 1192(1) if the motorist was involved in an accident. The relevant statute, VTL 1194(1)(a) states in pertinent part:that a police officer may arrest a person, without a warrant in case of a violation of subdivision (1) of section 1192 of this article, “if such violation is coupled with an accident or collision in which such person is involved, which in fact has been committed, though not in the police officer’s presence, when the officer has reasonable cause to believe that the violation was committed by such person.”

Accordingly, only if a motorist is believed to have committed VTL 600(1); VTL 601 or VTL 1192(1) involving an accident can an officer arrest even though these non-criminal traffic infractions were not committed in the officer’s presence.The Legislature’s Exclusion of Some Traffic Infractions From The Precepts Of CPL 140.10(1)(b) Establishes An Irrefutable Inference That Those Not Excluded Were Intentionally Not Excluded
That an officer may not arrest for non-criminal traffic infractions not committed in his presence except where said infraction is for violating VTL 600(1); VTL 601; and VTL 1192(1) involving an accident is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York Statutes 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.).
The New York Legislature has in fact judicially created several exceptions to the general rule found in CPL 140.10(1) which prohibits an officer from making an arrest or issuing an appearance ticket for non-criminal traffic infractions not committed in his presence. These express exceptions created by the legislature pertain to violations of VTL 600(1); VTL 601 and VTL 1192(1) involving an accident.

It must be noted however that the Legislature did not except any other non-criminal traffic violations from the precepts of CPL 140.10(1). Therefore, under New York Statute 240, there is an irrefutable inference that the Legislature purposely chose not to exclude any other non-criminal traffic infractions from the precepts of CPL 140.10(1)(a).

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New York’s “move over” law was expanded starting at the beginning of this year (January 1, 2012) making it applicable to not only emergency vehicles that are stopped on the side of the road but now to “hazard vehicles”. The law, which originally went into effect last January originally only covered “emergency vehicles” those vehicles which are displaying either a red light or a combination of red and white lights such as a police, fire or emergency medical vehicle. Now, as of this year, the law also applies to “hazard vehicles” those vehicles which display one or more amber lights such as tow trucks, road service vehicles and highway crews.

New York Vehicle and Traffic Law Sec 1144-a requires that drivers on a limited-access highway or parkway to exercise “due care” when approaching an emergency or hazard vehicle and defines due care as requiring at a minimum that the driver move from the lane adjacent to the shoulder where the emergency or hazard vehicle is stopped. In other words if the emergency vehicle is stopped on the right shoulder and you are driving in the right lane, you must move over to the center lane as you pass the emergency or hazard vehicle. Since moving over is not always possible on busy New York highways, the law does set the condition that you should move over only if it complies with other New York Vehicle & Traffic Laws such as moving from lane unsafely under V&TL 1128 and disobeying a traffic control device under V&TL 1110. In other words, if it is not safe to do so you or it is otherwise illegal to move over you should not. Rather, in that case you should slow down.

Violating the new “move over” law is a traffic infraction under New York Law punishable by a fine of $150, 2 points on you license and up to 15 days in jail although it should be emphasized that jail in not a likely possibility and that the points have been improperly reported in the media. The points count toward suspension of your driver’s license and/or the driver responsibility assessment.

Motorists should be warned that when section 1144-a originally went into effect last year the police were very aggressively enforcing the new law. We fully anticipate that the police will be aggressively enforcing all of the new provisions of section 1144-a. In addition motorists need to exercise extreme caution when they attempt to move over. The purpose of the law is safety and changing lanes create another risk. Vehicle and Traffic Law section 1144-a makes clear that you must observe all other Vehicle and Traffic Laws including but not limited to using your turn signal, changing lanes safely, complying with lane markings, signs and speed restrictions.

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An article in today’s Wall Street Journal entitled “As Federal Crime List Grows, Threshold of Guilt Declines” focuses public attention on two trends that has long been followed by Federal Criminal Defense lawyers and has raised concerns among civil rights advocates and attorneys. The first trend, involving the rapid and uncontrolled growth of federal crimes (as distinguished from state crimes like murder, rape, assault, etc) has seen the number of federal crimes rise from just 20 to about 4500. The other trend is the erosion of the proof necessary to prove many federal crimes and send someone to prison.

The uncontrolled growth of federal criminal statutes has resulted in many individuals who are clearly not criminals getting caught up in the criminal justice systems for acts that they were clearly not aware constituted crimes. In legal thought there are generally considered two types of crimes. Crimes that are called in Latin malum in se, meaning wrong in itself are crimes that are generally obvious or inherently wrong or evil such as murder, stealing, assault or rape. The other type of crimes are called malum prohibitum in Latin, meaning wrong as prohibited are those crimes which are wrong only because they are prohibited by a statute such as gun possession, drug possession, copy write infringement, tax evasion or illegal immigration.

Since most crimes that are malum in se crimes, the obvious ones, have already been illegal, the new crimes are the malum prohibitum crimes, the crimes that are not so obvious. To make matters worse, according to the Wall Street Journal article, federal criminal offenses are not limited to one section of federal law but are scattered among 42 of the 51 titles of the United States Code. That means there is no one place where you can look to see if your acts are illegal. So the combination of having non obvious criminal offenses scattered all around the law results in frequent accidental transgressions of sometimes serious laws.

New York criminal law firm Tilem & Campbell has just added a new Leaving the Scene of an Accident page to its already extensive website.

Leaving the Scene on an Incident (as its called in New York Vehicle & Traffic Law §600) cases in New York can be among the most serious cases faces drivers since Leaving the Scene of an Accident involving Serious Physical Injury or Death can result in felony charges. This is true even if the accident or incident was not the operator’s fault. If the incident involves a death the operator faces a 7 year prison sentence upon conviction for a class “D” felony and if the incident involves serious physical injury but not death the driver faces up to four years in prison upon conviction for a class “E” felony.

Even Leaving the Scene involving a minor injury can result in a misdemeanor criminal charge and a jail sentence of up to a year and leaving the scene involving property damage can result in a conviction for a traffic infraction and three points on your license.

In what appears to be a stunning assault on first amendment rights, a proponent of a concept called “jury nullification” has been indicted in New York for charges relating to jury tampering. Jury nullification, a term familiar to most experienced criminal lawyers refers to a controversial legal principle in which juries acquit defendants, accused of crimes based upon their own conscience and without regard to the judge’s explanation of the law. Since an acquittal by a jury is final and not subject to appeal, courts may not examine the reason for an acquittal. Therefore, all juries have an inherent right to nullify a charge. The controversy surrounds telling juries about this right.

Courts and prosecutors are inherently antagonistic to jury nullification so jurors are generally never told that they have the right to nullification and in fact are generally told that they must follow the law as instructed by the judge and must convict the defendant if the evidence establishes guilt beyond a reasonable doubt.

Julian P. Heicklen, a retired Penn State University professor apparently raised the ire of prosecutors in the United States Attorney’s Office for the Southern District of New York because he handed out fliers to potential jurors outside the Pearl Street, Federal Courthouse and other area courthouses notifying jurors of their inherent right to nullify verdicts. Although he handed out fliers to jurors, he never targeted any specific jury or attempted to influence the outcome of any specific case. In fact, according to a New York Times article Mr. Heicklen identifies himself as a law an order man.

In New York, often an individual will be issued an appearance ticket by the police. Many times appearance tickets are issued for offenses such as marihuana possession, aggravated unlicensed operator and driving while intoxicated. Experienced criminal attorneys know that getting a client an appearance ticket, also called a “Desk Appearance Ticket, can mean the difference between spending 24 hours or more in custody or spending less than an hour. An appearance ticket can be issued by the police, in lieu of arrest. Also, after an individual has been arrested, the police can issue that individual an appearance ticket and release him from police custody without waiting to be formally arraigned before a judge. There are limitations on when the police may issue an appearance ticket which will be discussed in a future blog. [CPL 150.20].

An appearance ticket is basically a written notice signed by a police officer or other authorized public official directing a designated individual to appear in a designated local criminal court at a designated future time in connection with that individual’s alleged commission of a designated offense. Any notice that conforms to this definition of an appearance ticket constitutes an appearance ticket notwithstanding that the notice is referred to as a summons or other name or title. [CPL 150.10(1)]. A traffic ticket, simplified traffic information or similar notices are therefore also “appearance tickets.”
If you’ve been issued an appearance ticket in connection with any offense (criminal or non-criminal), feel free to contact us toll free at 1-877-377-8666 or visit us on the web at Also you may purchase our book entitled Appearance Tickets in New York at

New York criminal defense attorneys know that a Desk Appearance Ticket (DAT) can be your best friend. Its great for the attorney who doesn’t have to go to Court in the middle of the night to do an arraignment, its great for the client who doesn’t have to be locked up for 24 hours or more while they are waiting to see a judge and its even good for the police who can process the arrest at their leisure and who do not have to worry about racking up police overtime while processing the arrest.

Briefly, a DAT in New York is simply a notification to a person arrested that they must appear in Court on a future date in connection with certain specific charges. The police officer or prosecutor will then file those charges in Court. It permits a police officer to release the person prior to the charges being filed in Court and prior to seeing a judge.

DATs are governed by New York CPL Article 150 which limits when police officers may issue Desk Appearance Tickets. In sum, they may only be issued for Class A and B misdemeanors, Class E felonies and violations. There are also some specific exceptions such as certain Escape, Absconding or Bail Jumping charges. People charged with those crimes or more serious felonies will not be eligible for Desk Appearance Tickets.

The Queens District Attorney’s Office announced the indictment of a Dutch man for his role in spraying graffiti on a subway car in Queens and then taking police on a foot pursuit on the subway tracks. The cases focuses attention on the serious charges associated with graffiti in New York including Criminal Mischief, Making Graffiti and Possession of Graffiti Instruments. It also focuses attention on “Graffiti Tourism” a growing phenomenon in this area.

Criminal Mischief in New York is a crime involving damaging property (either intentionally or recklessly) and is generally a misdemeanor punishable by up to one year in jail. Damaging property in an amount exceeding $250 can be charged as a class “E” Felony punishable by a prison term of up to 4 years and damaging property in an amount exceeding $1500 is a class “D” felony punishable by up to seven years in prison.

The problem is that the threshold amounts have not been changed since 1971 and when the New York State Legislature amended the Grand larceny Statutes in 1986 they forgot to amend the Criminal Mischief statutes. In practice, that means that if you steal property worth $300 you are only guilty of a misdemeanor but if you damage property worth $300 you are guilty of a felony.

The New York Penal Law defines several different crimes such as Assault, Robbery and Burglary that have serious physical injury as an element. The definition of serious physical injury is complex and if a person finds themselves charged with a crime in which serious physical injury is an element they should consult an experienced New York criminal defense attorney as quickly as possible.

As the name implies, serious physical injury involves injury which is far more involved than physical injury which is defined in our April 16, 2008 blog. In a nutshell, Serious Physical Injury is a physical injury which:

• Creates a substantial risk of death;

If you are charged in New York State with any crime wherein “physical injury” is an element of the crime charged (for example, Assault in the Third Degree), you need a Criminal Defense Attorney well-versed in not only the statutory definition of “physical injury” but how the courts have interpreted the definition and applied that definition in other cases such as one of the attorneys at the Westchester Firm of Tilem & Campbell. Many times a good plea-bargain offer results from your attorney pointing out difficulties in the prosecutions case. For example, showing the prosecutor prior cases where similar allegations and injuries were found not to constitute a physical injury might result in the prosecutor offering the violation of disorderly conduct. If plea negotiations fail, an experienced criminal defense attorney usually will attack, among other things, the “physical injury” element of the crime at trial. But obviously, he or she must be well versed in the cases dealing with physical injury findings.

Physical injury: (PL § 10.00(9)). Physical Injury is defined as the impairment of one’s physical condition or substantial pain. For the exact definition, see NY Penal Law § 10.00(9). The definition of “physical injury” and whether one has in fact suffered a “physical injury” is of utmost importance where one is charged with Assault in the Third Degree (PL § 120.00); a Class “A” Misdemeanor. Virtually all Third Degree Assault charges hinge on whether the defendant intentionally, recklessly or with criminal negligence caused a physical injury. The state of mind element (intentional, recklessly or with criminal negligence) and the physical injury element are what we as defense attorneys look to attack.

A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another, he in fact causes a physical injury to another or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another person with a deadly weapon or a dangerous instrument.

(For the exact wording of the Assault in the Third Degree Statute see PL § 120.00)

Recall, a physical injury can be established by impairment of one’s physical condition and/or by the suffering of substantial pain. However, because a serious criminal conviction can result from a physical injury, the Court of Appeals (the highest Court in New York) has been strict in requiring proof of an “objective level” of physical injury to hopefully ensure that one is not convicted of a crime where the injury was merely inconsequential. For example, in Matter of Philip A., 1980, 49 N.Y.2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980), the Court of Appeals held that two punches to the face causing red marks, crying, and an unspecified degree of pain was insufficient proof of a physical injury. Two years later, in People v. Jimenez, 55 N.Y.2d 895, 896, 449 N.Y.S.2d 22, 433 N.E.2d 1270 (1982) the Court of Appeal reaffirmed the need for a true “physical injury” holding that a one centimeter cut above the victim’s lip, without more, was insufficient proof of a physical injury.

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