CRIMINAL PROCEDURE Category Archives — Page 12 of 23 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

LOCAL CRIMINAL COURT CAN DISMISS AN APPEARANCE TICKET IF THE POLICE OFFICER FAILS TO SUBSEQUENTLY FILE THE REQUIRED ACCUSATORY INSTRUMENT BY THE RETURN DATE [Snead v. Aegis Secur., Inc., 105 A.D.2d 1059]

April 20, 2011 | Tilem & Associates

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.

WHERE A DEFENDANT APPEARS IN A LOCAL CRIMINAL COURT AS INSTRUCTED IN AN APPEARANCE TICKET, THE COURT DOES NOT ACQUIRE JURISDICTION OVER THE DEFENDANT IF AN ACCUSATORY INSTRUMENT HAS NOT BEEN FILED [People v. Stirrup, 91 N.Y.2d 434]

April 20, 2011 | Tilem & Associates

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).

FOR SPEEDY TRIAL PURPOSES, UNDER ARTICLE 30 OF NEW YORK’S CRIMINAL PROCEDURE LAW, THE ACTION AGAINST A DEFENDANT WHO HAS BEEN ISSUED AN APPEARANCE TICKET IS DEEMED COMMENCED ON THE DATE DEFENDANT FIRST APPEARS IN COURT AS INSTRUCTED IN THE APPEARANCE TI

April 15, 2011 | Tilem & Associates

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.

LEAVING THE SCENE OF AN ACCIDENT – WHAT MUST YOU REPORT?

April 9, 2011 | Jasmine Hernandez

New York VTL §600 requires that anyone operating a vehicle who is involved in an incident involving that vehicle that knows or has reason to know that damage was caused to property or injury was caused to a person to stop and exhibit their information at the scene of the incident. The question is exactly what do you exhibit? What must you show and What information must be exchanged in order to avoid being charged with Leaving the Scene of an Incident in New York.

New York Vehicle and Traffic Law §600 clearly defines which information must be exchanged, as follows:

1. Name,

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.

IN NEW YORK, THE PROSECUTION IS REQUIRED TO MAKE AN “ADEQUATE” OPENING STATEMENT WHICH DELINEATES THE PARTICULAR OFFENSES CHARGED AND HOW THEY WILL BE PROVEN. IF THE PROSECUTION FAILS TO MAKE AN “ADEQUATE” OPENING STATEMENT – THEY GET A “DO O

March 27, 2011 | Tilem & Associates

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.

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.

FINGERPRINTING 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 IS DISCRETIONARY. [CPL 130.60]

March 20, 2011 | Tilem & Associates

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.

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.

IN A STUNNING ASSAULT ON FIRST AMENDMENT RIGHTS – JURY NULLIFICATION PROPONENT WAS INDICTED IN NEW YORK

February 27, 2011 | Jasmine Hernandez

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.