TRAFFIC Category Archives — Page 4 of 8 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

NEW YORK LEAVING THE SCENE OF AN ACCIDENT

April 5, 2011 | Jasmine Hernandez

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.

IT IS CONSTITUTIONALLY PERMISSIBLE FOR NEW YORK STATE TO TRANSFER THE ADJUDICATION OF TRAFFIC INFRACTIONS TO AN ADMINISTRATIVE AGENCY WHICH UTILIZES THE “CLEAR AND CONVINCING EVIDENCE” STANDARD OF PROOF INSTEAD OF THE HIGHER “BEYOND A REASONABLE DOU

March 31, 2011 | Tilem & Associates

In New York State, prior to 1969, all traffic tickets were handled in the criminal court for the particular jurisdiction where the traffic infraction (speeding, stop sign, red light, etc) allegedly occurred. In 1969, the New York State Legislature enacted Article 2-A of the Vehicle and Traffic Law, which authorized the administrative adjudication of traffic infractions in cities with populations in excess of one million people. In 1972, the population requirement was lowered to 275,000. The population requirement is currently 200,000. In other words, cities in the State of New York with a population of more than 200,000 can “opt” into the Department of Motor Vehicle’s Traffic Violation Bureau (TVB) system thus adjudicating traffic infractions administratively instead of in their respective criminal courts.

Currently New York City, Rochester, Buffalo and certain parts of Suffolk County utilize the TVB administrative system. Therefore, if you are issued a ticket in those jurisdictions, your case will be handled by the TVB and determined by an administrative law judge.

Just like in criminal court, the burden of proof in a TVB hearing is upon the People (the prosecution). However, the burden proof is lower in a TVB proceeding than in criminal court. Indeed, the burden of proof for one to be convicted at a TVB hearing is “clear and convincing evidence.” VTL 227(1). However, the burden of proof for one to be convicted of the very same traffic infraction in a criminal court is “beyond a reasonable doubt.”

ONLY THE PROSECUTOR CAN PLEA BARGAIN TRAFFIC VIOLATIONS. JUDGES THAT TRY TO INFLUENCE OTHER JUDGES ON TRAFFIC TICKETS OR REDUCE TRAFFIC TICKETS WITHOUT THE CONSENT OF THE PROSECUTOR CAN BE REMOVED FROM THEIR POSITION AS A JUDGE. [Matter of Reedy, 64 N.Y

March 23, 2011 | Tilem & Associates

In New York, unless your traffic ticket is returnable to the Traffic Violations Bureau, you will most likely be offered a chance for you or your traffic court attorney to conference your ticket with the prosecutor. At this conference the prosecutor usually offers to reduce the charge to something with less points in return for you agreeing to waive your right to trial. Most times the prosecutor on a traffic ticket is the officer who issued the ticket or another officer from the same police agency. However, the New York State Police have an internal policy forbidding state troopers from plea bargaining tickets they issue. Therefore, many towns, villages and cities have hired “special” prosecutors to prosecute tickets issued by state troopers. These “special” prosecutors are not bound by the New York State Police “no plea” policy.

One individual who is absolutely not allowed to unilaterally reduce a traffic infraction or enter into plea negotiations with the defendant is the judge. A judge is not allowed to plea bargain even if you are charged with a criminal offense. In Matter of Reedy, the son of Justice James H. Reedy received a speeding ticket returnable to J. Reedy’s court. Following correct protocol, J. Reedy recused himself from the case and asked a judge in a neighboring jurisdiction to accept the transfer of the case. At that point J. Reedy should have taken no further action. He should have taken the steps necessary to transfer his son’s speeding ticket case to a neighboring jurisdiction and let that jurisdiction proceed as they would with any other speeding ticket.

However, J. Reedy contacted the other judge, told him that his son was represented by an attorney and that an Assistant District Attorney had offered to reduce the speeding charge to VTL 1202(a)(1) which is a no point parking type violation. The other judge agreed to the plea bargain offer and indicated the fine would be $25.00.

TILEM & CAMPBELL PARTNER QUOTED IN TODAY’S NEW YORK TIMES

March 16, 2011 | Tilem & Associates

Tilem & Campbell senior partner Peter H. Tilem was quoted in today’s New York Times in the article about the Federal Investigation into the tragic bus crash that killed 15 people over the weekend. There has been much speculation about whether or not the driver will be charged with a crime in connection to the deadly accident and the Times sought advice from two former prosecutors who have been involved in these types of cases.

The issue will boil down to whether the bus driver’s conduct leading up to the fatal crash rose to the level of criminal negligence or recklessness according to Mr. Tilem who reportedly told the Times that just falling asleep at the wheel without more usually wouldn’t rise to the level of either criminal negligence or recklessness. Mr. Tilem also told the times that it is usually a combination of factors such as weaving, speeding and driving after a long period without rest that could combine to make it possible for prosecutors to charge the driver.

To rise to the level of Recklessness, a person must be aware of and consciously disregard an unjustifiable and substantial risk. To rise to the level of Criminal Negligence a person must fail to perceive an unjustifiable and substantial risk. In both cases the risk must be so grave that the failure to perceive it or the conscious disregard of the risk constitutes a gross deviation from the standard of care that a reasonably prudent person would observe in a given circumstance.

DRIVER CHARGED WITH SPEEDING IN NEW YORK CITY NOT ENTITLED TO DISCOVERY OF DOCUMENTS PERTAINING TO THE OPERATING PROCEDURES AND TESTING OF THE RADAR UNIT USED TO MEASURE DRIVER’S SPEED

February 22, 2011 | Tilem & Associates

If you are issued a speeding ticket in New York City, your case is not handled in a criminal court (as it would be if were issued a speeding ticket in Westchester County). Instead, your case will be heard by the Traffic Violations Bureau of the Department of Motor Vehicles (TVB). Cases heard by TVB are not criminal but instead are considered administrative proceedings. An experienced traffic court attorney can explain the difference between a speeding ticket issued in New York City and one issued in a city such as Yonkers or White Plains in Westchester County.

Often, people we represent who are charged with speeding in New York City ask if we can obtain information about the particular radar or laser unit the police used to measure their speed. For examples, the operating procedures and testing history.

The answer is generally no. The CPLR, including its discovery provisions, is not applicable in cases heard by the Traffic Violations Bureau. 15 NYCRR § 123.1. In Miller v. Schwartz, 72 N.Y.2d 869 (1988) the New York Court of Appeals upheld the constitutional validity of this rule and held that there is no constitutional right to discovery in administrative proceedings. (Note: The TVB is not a criminal court; it is an administrative tribunal).

NEW YORK CELL PHONE LAW JUST GOT TOUGHER

February 18, 2011 | Tilem & Associates

A new rule that went into effect this past Wednesday, elevated the penalties for Talking on a cell phone while driving VTL 1225 c(2). The new law raises the maximum fine to $150 but also imposes 2 points on a motorist’s driving record. The points can result in higher insurance premiums, financial penalties from the Department of Motor Vehicles or suspension or revocation of your driver’s license. New York traffic ticket attorneys are prepared to fight these new tickets.

New York’s ban on talking on mobile phones while driving prohibits talking on phones without an attached hands free device. New York was the first state to impose such a ban which has been controversial since studies have shown that these laws fail to reduce accidents. The law as initially enacted carried a maximum $100 fine and no points.

This new law will encourage motorists to fight New York cell phone tickets since traffic court attorneys are often able to get 2 point violations reduced to no points or get them dismissed altogether. Under the old law, it rarely paid to fight a cell phone ticket.

A DEFENDANT NEED NOT WAIT TO BE ARRAIGNED ON A TRAFFIC TICKET BEFORE HE CAN RIGHTFULLY REQUEST A SUPPORTING DEPOSITION. HE MAY REQUEST A SUPPORTING DEPOSITION WHEN “CHARGED.” [People v. Tyler, 1 NY3d 493]

February 1, 2011 | Tilem & Associates

At Tilem & Campbell we handle traffic tickets throughout New York State. Knowing the rules helps us obtain the best results for our clients. In New York, when a defendant is charged in a criminal court with a traffic infraction such as speeding, he is entitled to a supporting deposition upon a timely demand. CPL 100.25(2). (Of course these rules do not apply to New York City Traffic Tickets which are not handled in a “criminal court”.) However, when can a defendant request a supporting deposition? Can the defendant request the supporting deposition prior to the return date on the ticket? Can the defendant request the supporting deposition prior to actually being arraigned on the traffic ticket? In other words, can the defendant request the supporting deposition before he even enters his not guilty plea? As explained below, the answer is yes; a defendant may request the supporting deposition prior to the return date on his ticket and prior to his arraignment on the ticket.

Criminal Procedure Law sec. 100.25(2) formerly “expressly provided that a defendant is only entitled to a supporting deposition after he has been arraigned upon a simplified information (a traffic ticket). see People v Perry, 87 N.Y.2d 353, 355 (1996)

In Perry, the defendant was charged Failing to Yield The Right of Way to an Emergency Vehicle in violation of VTL 1144 – a traffic infraction. Thereafter, defendant’s attorney sent an “appearance letter” to the local court indicating that defendant was pleading not guilty and requesting a supporting deposition. The supporting was not served on defendant and his subsequent motion to dismiss was granted.

SPEED TRAP ON HENRY HUDSON PARKWAY REOPENS

August 28, 2010 | Jasmine Hernandez

New York speeding tickets are a dime a dozen but the speed trap on the Henry Hudson parkway north between the George Washington Bridge and about 1/2 mile before the Henry Hudson Bridge is just inexplicable. The speed limit is 35 miles per hour in the vicinity of Fort Tryon Park while it is 50 mph on the identical stretch of highway heading south bound and 50 mph before and after this stretch between the George Washington Bridge and the Henry Hudson Bridge.

Without any explanation several months ago the speed limit signs were changed to 50 mph on this stretch of highway and then just as mysteriously went back to 35 mph within the last several days. Of course, the New York City Police are aggressively enforcing the new speed limit.

To add to the absurdity, the speed limit goes up to 50 mph about 1/2 mile before the speed limit suddenly drops to only 10 mph just before the Henry Hudson Toll Plaza.

TILEM & CAMPBELL SCORES ANOTHER TRIAL WIN IN WESTCHESTER DWI CASE

May 2, 2010 | Tilem & Associates

Tilem & Campbell managing partner Peter Tilem scored his fourth straight DWI trial victory this week when the Cortlandt Justice Court in Westchester County New York, acquitted his client of all charges which included DWI (VTL 1192(3), Aggravated Unlicensed Operation (VTL 511) and Speeding (VTL 1180). The defendant was facing a year in jail.

While the arresting officer testified to signs of the defendant’s intoxication, Mr. Campbell focused the defense on signs of the defendant’s sobriety and the defendant’s flawless operation of his vehicle. For example, on cross-examination, the arresting officer admitted that he followed the defendant for several miles and that there was nothing about how the defendant drove the vehicle that indicated he was intoxicated; that the defendant maintained his lane at all times; that he did not hit anything or drive erratically; that he safely pulled his vehicle to the shoulder and came to a safe stop. The officer also admitted that the defendant complied with all orders, produced his license, registration and insurance card without any problems and that he exited his vehicle with no problems. The only traffic violation the officer claimed to have observed was speeding.

The Court found that there was reasonable doubt as to whether the defendant was actually intoxicated. Further, the Court found that the defendant had no knowledge that his license was suspended. Finally, the Court found the defendant not guilty of the speeding charge because the arresting officer could not recall if there was a posted speed limit sign at the time he stopped the defendant.

TILEM & CAMPBELL TAKES RED LIGHT TICKET TO TRIAL and WINS

April 27, 2010 | Jasmine Hernandez

In March 2010, Tilem & Campbell senior partner Peter H. Tilem took a passing a steady red light summons to trial in Ardsley Village Court here in Westchester County. The offense was videotaped by the video camera behind the patrol car’s rear view mirror. Yesterday, Ardsley Village Justice Walter Schwartz issued a written decision finding the motorist not guilty and dismissing the ticket.

The issue raised at trial by Mr. Tilem is under what circumstances a police officer may issue a ticket for passing a red light when the police officer does not view the same traffic light as the motorist but rather views that the light is green in the perpendicular direction. May the police officer infer that the light facing the motorist is red? It turns out that the answer is no, the Officer may not reach that inference and rather would be required to examine the light to make sure it was working properly.

In the Ardsley case tried last month, the police officer never inspected the light but rather testified in very conclusory terms that the light was “working properly.” In addition, the police officer attempted to bolster his case by claiming that he saw the shadow of the red light from his angle, but that testimony was called into question when he admitted, during cross-examination by Mr. Tilem, that the weather was clear, that it was mid-day and that the cylinders over the lights were designed to prevent motorists from seeing the light from the side and becoming confused.