Articles Posted in CRIMINAL PROCEDURE

In New York, for certain minor offenses, such as speeding, misdemeanor drug offenses or Leaving the Scene of an Accident the police (or other authorized public servant) can issue and serve a person an appearance ticket in lieu of arrest or, if they arrest the person, they can issue an appearance ticket to the person at the police station instead of putting the person through the system to see a judge. [See NY CPL Art. 150].

Typically an appearance ticket says “Appearance Ticket” or “Desk Appearance Ticket” across the top. The appearance ticket must be signed by the a police officer or other authorized public servant, it must name the defendant and direct him to appear in a designated court on certain date and time in connection with the alleged offense. [CPL 150.10(1)].

However, an appearance ticket, or desk appearance ticket, doesn’t have to conform to any particular form or style. So long as the document given to a person contains the information required of an appearance ticket and is properly signed, it can be an appearance ticket.

In New York, where a police officer issues a defendant an appearance ticket for a crime such as Reckless Driving or Possession of Marihuana directing that defendant is to appear in a local criminal court on a future date, the police officer is supposed to file, or cause to be filed a sufficient accusatory instrument (the “paperwork”) with that local criminal court before the defendant’s appearance. [See CPL Art. 150].

In some cases, the police officer fails to file the required sufficient accusatory instrument in a timely manner. In many small city, village or town courts a defendant might wait all day (or night) for his “paperwork.” In some bigger jurisdictions such as New York City, the court will give the defendant a notice acknowledging his appearance in court and informing him of a new date or that the court will send him a new date.

However, the local criminal court can dismiss the appearance ticket 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. The city court did what all courts should be doing; it held the police accountable to the law.

In New York, a police officer can issue a defendant an appearance ticket also referred to as a “Desk Appearance Ticket” or “DAT” instead of formally arresting that defendant where the charge is a non-criminal offense, a misdemeanor or most E felonies. CPL 150.20(1). Before the defendant appears in court as instructed in the appearance ticket, the police officer is supposed to file a sufficient accusatory instrument (the “paperwork”) with the particular court. CPL 150.50(1).

Sometimes the police officer doesn’t file the accusatory instrument in a timely manner and when the defendant arrives in court as instructed in his appearance ticket he learns that his “paperwork” is not ready. In some jurisdictions the defendant might sit around all day waiting for his “paperwork” while in others the court will give the defendant a notice acknowledging his appearance and giving him a new date.

When this happens, while the action against the defendant is deemed “commenced,” [CPL 30.30(5)(b); People v. Stirrup, 91 N.Y.2d 434 (1998)], the court does not obtain jurisdiction over the defendant. A court cannot obtain jurisdiction over a defendant until an accusatory instrument is filed against that defendant. Therefore, the court cannot arraign the defendant nor can it issue an arrest warrant for a defendant who fails to appear in response to an appearance ticket until an accusatory instrument has been filed against that defendant. See People v. Stirrup, 91 N.Y.2d 434, 439 (1998)(court may not arraign a defendant who voluntarily answers an appearance ticket, where no accusatory instrument has been filed; nor may a court issue a warrant of arrest to secure the presence of a defendant to answer the appearance ticket, in the absence of an accusatory instrument).

In New York, in cases involving non-criminal offenses (violations), misdemeanors and most E felonies, instead of formally arresting the defendant, the police can issue that defendant an appearance ticket directing him to appear in a designated local criminal court on a designated date and at a designated time. [See NY CPL Art. 150].

The date the defendant is instructed to appear in court is referred to as the “return date.” Before, the return date, the officer who issued the appearance ticket is supposed to file or cause to be filed, a sufficient accusatory instrument (the formal papers charging the defendant) with the local criminal court the defendant is supposed to appear in. CPL 150.50(1)].

Sometimes the defendant appears at court as instructed in the appearance ticket only to learn that the accusatory instrument has not been filed (i.e., his “paperwork” is not there). When this happens in some smaller city courts and in the town and village courts, the defendant can spend the whole day waiting for his “paperwork.” In New York City, however, the court will usually give the defendant a notice acknowledging the defendant appeared as instructed in the appearance ticket and either informing him of a new date or that he will receive a new date in the mail.

At Tilem & Campbell our lawyers have the trial experience to take cases to trial when plea bargaining proves to be non-productive. Criminal defense lawyers need not make an opening statement at trial. However, in a New York State criminal trial, the prosecution “must deliver an opening address to the jury.” [CPL 260.30(3)]. Although the relevant statute, CPL 260.30(3), does not set forth the required content of the prosecution’s opening statement, “at a minimum the prosecutor generally should set forth the nature of the charge against the accused and state briefly the facts he expects to prove, along with the evidence he plans to introduce in support of the same.” People v. Kurtz, 51 N.Y.2d 380, 384 (1980).

If the prosecutor’s opening statement is deficient, defense counsel should move to dismiss the case at the conclusion of the prosecution’s opening pointing out the deficiencies in their opening statement. The trial court is obligated to rule on this motion when defense counsel makes it and cannot reserve decision. Why? Because the prosecutor must be given the opportunity to correct any deficiency in their opening – thus avoiding dismissal. Id at 384.

The Kurtz case exemplifies the general rule that courts will rule in a manner that favors the prosecution to the detriment of the defendant. In other words, it is the defense attorney who must (1) recognize that the prosecutor’s opening is deficient; (2) bring this deficiency to the court’s attention; and (3) tell the court (and therefore the prosecutor) why the opening was deficient. Then, after the prosecutor has been taught by the defense attorney how to properly give an opening, the prosecutor gets a “do over” – he gets to present another opening this time making the necessary adjustments all thanks to the defense attorney.

As explained in a prior blog, New York State law requires, with some limited exceptions, that an individual be fingerprinted when he is arrested for (1) a felony; (2) a misdemeanor defined in the New York State Penal Law; (3) a misdemeanor defined outside the New York State Penal Law if the misdemeanor would be a felony because the individual has a prior criminal conviction; or (4) loitering for the purpose of engaging in prostitution under Penal Law 240.37(2). [See CPL 160.10(1)].

However, upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, the court may, if it finds reasonable cause to believe the defendant committed one of the “printable” offenses listed above, order that the defendant be fingerprinted. [CPL 130.60(2)].

Therefore, where a defendant appears in court pursuant to a properly served summons and that summons is based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, defense counsel should object to the printing of the defendant absent a finding by the court of reasonable cause to believe the defendant committed one of the printable offenses listed above. Furthermore, defense counsel should further object to defendant’s printing arguing to the court that, under the statute [CPL 130.60(2)], even if the court finds reasonable cause, it “may” but need not order that the defendant be printed. The clear wording of the statute makes the fingerprinting of the defendant discretionary even where the court finds reasonable cause to believe the defendant committed a printable offense.