Articles Posted in TRAFFIC

New York Traffic Court Attorneys, Tilem & Associates has been able to verify rumors that have made the rounds of social media that for the first time New York State Troopers have been patrolling New York City Highways including the Belt Parkway in Brooklyn, The FDR Drive in Manhattan and the New England Thruway in the Bronx.  The Troopers have been seen pulling over cars and handing out summonses for unknown traffic violations most likely speeding and failing to signal lane changes.

CLICK HERE TO CONTACT US ABOUT A DISCOUNT ON FIGHTING TICKETS ISSUED BY TROOPERS

In reality the New York State Police do have a small Troop in New York City that is headquartered at Wards Island by the TriBoro (Robert F Kennedy) Bridge.  Although the State Police have chosen not to engage in many law enforcement functions inside of New York City, New York State troopers are Police Officers as defined in the Criminal Procedure Law (CPL 1.20 (34a)) and have the power to issue simplified traffic informations also known as summonses or traffic tickets.  In addition, subdivision 34-a of Criminal Procedure Law 1.20 defines the “geographical area of employment” of a police officer employed by a state agency as “New York State”.  Meaning that State Police Officers maintain their jurisdiction throughout all of New York State including the five boroughs of New York City.

New York Traffic Lawyers Tilem & Associates successfully won a motion which resulted in a speeding ticket being dismissed completely on novel grounds. Our client was charged with a violation of VTL §1180 (c) for traveling 40 miles per hour in a 25 mile an hour zone. Approximately 15 days after receiving the ticket, the Defendant mailed the ticket to court indicating that he was pleading not guilty and further indicating that he was requesting supporting depositions.

New York Criminal Procedure Law § 100.25(2) provides that a defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to a supporting deposition of a complainant police officer and that upon such a request, a court must order the officer to serve a copy of the same within 30 days of the date such request is received by the court, or at least five days before trial, whichever is earlier.

Approximately six days after receiving the Defendant’s request, the Court mailed an order for the supporting deposition to the local sheriff’s department and acknowledged the Defendant’s request. Approximately six days after that the Defendant received a copy of the supporting deposition. However, the affidavit of service accompanying the supporting deposition says that it was mailed to the Defendant but it not specify the address of the Defendant to which the supporting deposition was allegedly mailed.

If you’re stopped by the police in New York (Greenburgh, White Plains, Harrison, etc) for a traffic infraction such as speeding, should the police read you your “rights” prior to questioning you about where you coming from, if you had anything to drink or if you knew why you were stopped? When a person is arrested they lose certain rights. For example, when one is arrested, they lose their right to liberty and they are subject to a warrantless search incident to their arrest. In fact, a search incident to a lawful arrest is one of the many exceptions to the search warrant requirement.

However, while a person loses certain rights when they are arrested, they also obtain certain rights once they are arrested. For example, before the police can question a person who has been arrested they must read that person their “rights” – the police must “Mirandize” an arrested person before questioning.

There is absolutely no doubt that Uniform Traffic Tickets or Simplified Traffic Informations are also appearance tickets. See e.g., People v. Tyler, 1 N.Y.3d 493 (2004)(speeding ticket deemed an appearance ticket); People v. Hollinger, 15 Misc. 3d 130A (App. Term 2nd Dept. 2007)(The front of the uniform traffic tickets directed defendant to appear in the Justice Court of the Village of Old Westbury on September 18, 2003, thus serving as an “appearance ticket” under CPL 150.10); Farkas v. State, 96 Misc. 2d 784, 787 fn 1 (N.Y. Ct. Cl. 1978)(Appearance ticket includes, by definition, uniform traffic tickets); People v. Litean, 2008 N.Y. Misc. LEXIS 5475, 240 N.Y.L.J. 33 (N.Y. Sup. Ct. 2008)(“A summons requiring a defendant to appear in court is the equivalent of a desk appearance ticket . . .”); People v. Genovese, 156 Misc. 2d 569, 571 (J. Ct. 1992)(“the yellow copy of the simplified traffic information is an appearance ticket as defined by CPL 150.10”).

Since People v. Hazelwood, 104 Misc.2d 1121, 1123 (N.Y. City Crim. Ct. 1980) held that the detention of a person by the police for the purpose of issuing such person an appearance ticket creates an “arrest situation” justifying a search of such person just as if they had been formally arrested, doesn’t it follow that the police would have to Mirandize this so-called “arrested” person before questioning them? Why should the police get the benefit of deeming the person “arrested” so they can search them but not allow this “arrested” person the benefit of his Miranda rights just like any other arrested person?

One stopped by the police is clearly not free to go. In People v. Wallgren, 2011 NY Slip Op 51556U, (N.Y. County Ct. Aug. 16, 2011) the police officers testified at the probable cause hearing that defendant’s vehicle was driving erratically and they stopped it only to check on the driver’s “welfare.” However, as observed by the court, the officers were not concerned about the driver’s welfare but instead immediately launched into a DWI investigation:
Notwithstanding both officers’ testimony regarding the welfare
check, Officer Einsfeld, upon approaching the driver’s window,
asked whether the defendant was drinking prior to driving, where
the defendant came from and where the defendant was going.
These questions were clearly indicative of a DWI investigation,
not a welfare check and are designed to solicit incriminating
evidence from a motorist.

Furthermore, the police admitted that “when a police officer activates the police lights, the person is supposed to stop and is not free to leave until the police speak with the person.” Id. The court therefore concluded that the police testimony established that the defendant was in custody from the very inception of the defendant’s encounter with the police: “By [Officer Einsfeld’s] testimony alone the custodial status of the defendant from the very inception was admitted by the police.” Id.

Continue reading

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