Articles Posted in CRIMINAL PROCEDURE

|

In prior blogs I have explained that where the police choose to issue an arrestee an appearance ticket instead of detaining that person until they can see a judge, the police must thereafter file a sufficient accusatory instrument with the court on or before the return date listed in the appearance ticket. What action the courts can take where the required accusatory instrument has not been filed before the return date has not been definitively decided by the courts with some holding the court may dismiss the appearance ticket, while others have held the court must dismiss and still others have held the court cannot dismiss.

The differing holds are discussed in the following three sections.

Must Dismiss:

Continue reading

|

In New York, if a person is formally arrested, they can be searched incident to that arrest. However, can the officer also search a person if the person could have been arrested but the officer decides to issue that person an appearance ticket on scene instead? The answer is “sometimes.” Generally, the police can search a person they issue an appearance ticket to. However, the New York courts have frowned on a blanket right to search where traffic infractions are involved.

The detention of a person for the purpose of issuing that person an appearance ticket amounts to an arrest situation. People v. Hazelwood, 104 Misc.2d 1121, 1123 (N.Y. City Crim. Ct. 1980) see also People v. King, 102 A.D.2d 710 (1st Dept. 1984)(Where an “officer intends to issue an appearance ticket in lieu of a lawful arrest, he had the concomitant right to ‘pat down’ the defendant.”).

In Hazelwood, 104 Misc.2d 1121, the court held that the police could search a person they detained for the purpose of issuing that person an appearance ticket. Noting that the officer could have arrested the person and then searched the person incident to that arrest, the court observed: “to hold that a search is not permissible because an arrest did not occur in a case where the defendant was subject to arrest, but the officer gave the defendant a break, is an injustice to the officer.” Id. at 1124.

Continue reading

|

With Limited Exceptions, When the Defendant is a Natural Person,
Appearance Tickets Must be Served Personally [CPL 150.40(2)]

Generally, under New York law, other than an appearance ticket issued for a traffic infraction relating to parking, an appearance ticket must be personally served. Except, an appearance ticket issued for the violation of a local zoning ordinance or local zoning law, or of a local building or sanitation code may be issued in any manner authorized for service in a civil action under CPLR 308. CPL 150.40(2).

To summarize, appearance tickets issued to natural persons in New York must be personally served. Except, appearance tickets may be served in accordance with CPLR 308 (see below section) if they are for parking violations or violations of local zoning, building or sanitation violations.
Service Upon a Natural Person by Mail Insufficient. New York City Routinely Ignores The Requirement That Appearance Tickets Issued To Natural Persons Be Personally Served.

Personal service on a “defendant, whose liberty will be at stake in a criminal action, serves to assure his right to adequate notice and expeditious resolution of the charges.” People v. DiLorenzo, 149 Misc.2d 791, 794 (N.Y. City Crim. Ct. 1990). In DiLorenzo, the court noted that the certified mailing of an appearance ticket that should have been personally served was insufficient service.

In People v. Baxter, 148 Misc.2d 1009 (N.Y. City Crim. Ct. 1990) the court found service of appearance tickets by a New York City administrative agency by mail defective and dismissed charges for lack of jurisdiction. In doing so, the court observed “that the CPL requirements of personal service are not being followed by the Buildings Department and other administrative agencies.” Id. at 1010.

In People v. Neuberger, 149 Misc.2d 1 (N.Y. Crim. Ct. 1991) the court dismissed all charges against the defendants in the interests of justice explaining that “[a]s for the Corporation Counsel’s continued practice of flouting the service requirements of the Criminal Procedure Law, that abuse cannot be left unremedied.” People v. Neuberger, 149 Misc. 2d 1, 5 (N.Y. City Crim. Ct. 1991).

In Neuberger, several defendants were served appearance tickets by mail which ordered them to appear in criminal court. The Honorable Martin G. Karopkin explained that the Corporation Counsel had been warned numerous times over the preceding several months that such service by mail was improper:

On numerous occasions during the past several months this court, and others, have warned the Office of the Corporation Counsel, the Buildings Department and other city agencies that service by mail is improper and contrary to CPL 150.40, as well as CPL 600.10.

Id. at 1-2.

Despite the repeated warnings of both J. Karopkin and other judges, “the Corporation Counsel . . . continued to submit affidavits of mailing to the court accompanying its pleadings and to argue that the defendants’ appearances confer jurisdiction and render that issue moot.” Id. at 2-3. In other words, the New York City Corporation Counsel knowingly served appearance tickets on individuals by mail, in clear contravention of the law. What’s more troubling is that they continued to do so even after several judges warned the Corporation Counsel that such service was improper. Thus, the Corporation Counsel “acquired these defendants’ presence by means of improper service” and then argued that the defendants’ mere presence before the court conferred jurisdiction thus mooting the service issue. Id. at 5.

Service When Issued For Violation Of Local Zoning Laws,
Ordinances or a Building or Sanitation Code

An appearance ticket issued for the violation of a local zoning ordinance or law or a building or sanitation code may be served the same way a summons may be personally served upon a person in a civil action. [CPL 150.40(2)]. Personal service of summons upon a person in a civil action doesn’t necessarily require that the summons be literally handed (served) to the person. Pursuant to CPLR 308, personal service can be accomplished by:

(1) Actual Personal Service: Delivering the summons/appearance ticket upon the person within the State [CPLR 308(1)]; or
(2) Suitable age and Discretion Servcie: Delivering the summons/appearance ticket within the State to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served. When service is made by this method, it must be followed by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. This follow-up mailing must be done within twenty days of the delivery of the summons/appearance ticket to the person of suitable age and discretion as described above [CPLR 308(2)]; or
(3) Service on Designated Agent: Delivering the summons/appearance ticket within the State to an agent designated in accordance with CPLR 318 [CPLR 308(3)]; or
(4) “Nail-and-Mail” Service: If service cannot be made in a manner described above despite due diligence (a diligent effort), service may be made by affixing the summons/appearance ticket to the door of either the actual place of business, dwelling place or usual place of abode within the State of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. This follow-up mailing must be done within twenty days of the “affixing” of the summons/appearance ticket as described above [CPLR 308(4)]; or
(5) Court Ordered Service: If service of the summons/appearance ticket in a manner described above is impracticable, service may be made in a manner as the court, upon a motion without notice, directs [CPLR 308(5)]
In Contravention of New York State Law; New York City Code
Allows Service of Departmentally Issued Notices by Mail

While CPL 150.40(2) requires that appearance tickets issued for the violation of a local zoning ordinance or law or a building or sanitation code must be served the same way a summons may be personally served upon a person in a civil action, NYC Administrative Code 26-244 (c) provides for service of departmentally issued notices by mail.

Continue reading

|

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).

Continue reading

|

The Wall Street Journal Reported last week, that criminal charges were being prepared against British Petroleum and/or individuals who worked for British Petroleum and who were supposedly responsible for the oil spill that occurred in the Gulf of Mexico last year after the Deep Water Horizon drilling platform caught fire. This news highlights another troubling trend in the national trend toward over criminalization; “there are no accidents.”

Traditionally, criminal liability required two elements; a criminal act and a criminal mind referred to in Latin as “MENS REA”. The criminal mind required for criminal liability traditionally and under New York law was either that you acted intentionally, knowingly, recklessly or with criminal negligence. Specifically absent from the list was acting negligently or carelessly. Under New York law one who merely acts negligently or carelessly could be held liable for financial damages but could not be found guilty of a crime. As we over criminalize our society the traditional rule is giving way to attempts to hold someone criminally liable for every tragedy.

Recently in New York, three individuals were indicted by a grand jury, tried and acquitted of Manslaughter and related charges after a tragic fire in the Deutsche Bank building in lower Manhattan tragically killed two firefighters. The sadness and the outcry were great as the City attempted to place blame for the tragedy. Ultimately, a site safety officer, a contractor and an an abatement foreman, all of whom worked at the site were indicted for Manslaughter under the theory that they recklessly caused the death of the two firefighters. All were ultimately found not guilty in separate verdicts.

Whatever the tragedy, our society has moved to the point where it is not enough to merely hold someone civilly responsible and force them to pay for the damage they caused. Rather someone must be indicted, tried and if convicted sent to prison. It does not really matter whether the tragedy is a crane collapse, elevator accident, collapse of a company, oil spill or fire. The issue of who is to be held criminally responsible seems to take a back seat to the outrage and the need to find anyone who can be sent to prison. In the Deutsche Bank case, the jurors who were interviewed after specifically rejected such scapegoating.

As we have discussed in our prior blog, the element of having a criminal mind has been substantially relaxed or eliminated in many newer statutes, particularly in statutes that punish “Environmental Crimes.” As a result, convictions are easier to obtain in many of these cases brought as a result of tragic accidents.

Continue reading

|

As of 2008, 2 million youths are arrested each year. While the original intent of the juvenile justice systems created throughout the country was to prevent stigmatization and collateral consequences that could naturally flow from an arrest. As experienced criminal defense lawyers know the system is less than perfect in that regard. Examples abound of the collateral consequences that can and sometimes do flow to juveniles who are arrested.

For example, children can be suspended or expelled from school under the federal “Gun Free Schools Act (GFSA) for certain weapons offenses committed on school grounds. The GFSA requires that schools that receive federal funds expel a student for one year for certain weapons offenses. A student can be expelled even if found not guilty of the weapons offense. Many states have expanded this to require expulsion for weapons offenses committed off school grounds (New Jersey) or in the case of Missouri any student charged with a felony can be suspended or expelled even if they were found not guilty of the offense.

A common belief is that individuals arrested as youths have their records destroyed when they reach the age of 18. This is not necessarily the case. In New York, for example, there is absolutely no provision for expungement of criminal records and the statutes that require that records be sealed, never completely seal the records leaving the records accessible for a host of reasons. This can lead to more limited employment options for youths who have been arrested, even if those records were eventually sealed.

In addition, the misapplication of sex offender registration databases can have long lasting effects on youths who are charged as juveniles with sex offenses. In Michigan, for example, 8% of the sex offender registration list is made up of juveniles including children as young as 9 years old. In a well publicized and outrageous case in New Jersey a 14 year old girl was arrested and faced child pornography charges after she posted naked pictures of herself on myspace. The charged carries a possible sentence of up to 17 years and mandatory registration as a sex offender.

Sex offender registration laws, which arguably could have the most severe collateral consequences for youths, are a prime example of just how far off mission the juvenile justice system has drifted. Clearly, the aforementioned 14 year old needs help. But she is clearly not the intended target of either child pornography laws or sex offender registration laws which were originally passed to register sexual predators.

The issue of the over criminalization of our society and the resulting collateral consequences that flow to a large percentage of the population has a tremendous cost to our youth and to our economy at large as a large percentage of people are either unemployable or underemployed as a result of the consequences of an arrest. The issue and costs are clearly too significant to ignore.

Continue reading

|

The issue of the over criminalization of our society has been the focus of an increasing amount of media coverage and even led to recent hearings in congress. As discussed in the past in this blog (September 27, 2011 blog), the number of federal criminal statutes has increased to over 4500 and the watering down of some basic protections has led to convictions of people without criminal intent. Now, a recent study reveals that the number of youths being arrested has steadily increased to a staggering 30% of all youths by the time they turn 23 years old. This number while staggering is not surprising in light of the trend toward over criminalization and the increased reliance on police to address problems.

The number itself bears repeating. Thirty percent of youths are arrested by age 23, nearly one third of all youths. This number reflects all youths, not any particular group and is therefore likely higher among boys than girls and among minorities than non-minorities. The explanation however, is a lot more elusive. Certainly, crime nationally is on a protracted decline but it seems the propensity to arrest, for even minor offenses is clearly on the upswing. There is clearly less of a willingness on the part of the police to allow a school or the parents to handle a minor infraction.

As a criminal defense lawyer, involved with the criminal justice system for more than 20 years, I have noticed, a dramatic increase in the willingness of the police to intervene in what used to be matters often left to the school or the parents. Recent examples that I have noticed include a young high school student who “keyed” another student’s car in the high school parking lot is arrested and charged with the felony of Criminal Mischief for damaging property in excess of $250. Another example involves youths who attend parties where underage drinking occurs are arrested rather than being brought to their parents. Often times the parents who hosted the party are arrested themselves, even if they didn’t know about the drinking.

The potential for these arrests as youths to have long lasting effects even into adulthood is a legitimate fear as youths with arrests and convictions can lose valuable civil rights, the ability to obtain professional licenses and the ability to get jobs. The study which led to the report concluded that risk factors such as “being poor, struggling in school and having a difficult home” life were all factors that increased the likelihood of a youth being arrested.

As we discuss in a future blog, the consequences of an arrest, even if it doesn’t result in a conviction can be devastating to a young person and his or her future plans. The societal issues that have created this problem need to be dealt with. However, more immediately, if you or a loved one has been arrested for an offense you should immediately obtain experienced legal representation who is in a position to explain the process and the potential consequences whether or not a conviction results.

Continue reading

|

As discussed in our previous blog the Greenburgh Drug Court was so out of control that Court officials eventually had to transfer all of the cases out of the Court to protect the rights of those participating in its Drug Court. As it turns out, Drug Courts in general have become controversial and several studies that have been released this year raise several areas of concern for the people convicted of drug offenses who participate in these programs. Many of the concerns raised are related to the issues that derailed the Greenburgh Drug Court.

Generally, Drug Courts are a type of problem solving Court a new breed of specialized Court that attempts to solve a community problem such as drug abuse, domestic violence or guns. In the case of Drug Courts, participants, individuals arrested for drug related or drug motivated, non-violent crimes are asked to plead guilty in return for entering the Drug Court system where a “carrot and stick” approach will be used to get the participant to deal with their addiction. Participants who are successful are rewarded with such things as applause, certificates, praise and ultimately dismissal of their charges. Participants who are not successful are punished by being required to write essays, do community service, attend extra court sessions and in some cases lengthy jail sentences.

In a series of reports issued this year and discussed in a National Association of Criminal Defense Lawyers magazine article, the efficacy of the drug court model, as well as its expense and denigration of basic constitutional principles are called into question. In the Drug Court model used most often, drug court participants are often forced to plead guilty to crimes more severe than they might without Drug Court in the hopes that they will be able to get the charges dismissed after completing the Drug court program. In this model, as a cost of entering Drug Court, broad waivers are required, contracts and releases are signed and guilty pleas are entered giving the Court the “stick” to punish those who fail.

Continue reading

|

The Office of Court Administration, transferred all of the cases out of the Greenburgh Drug Court this week in an apparent response to complaints made by Tilem & Campbell partner, Peter H. Tilem. The problems began when a client of Tilem & Campbell, unhappy with her representation in the Town of Greenburgh Drug Court hired the firm to represent her. When Mr. Tilem, a 20 year veteran of the legal profession, and a member of the bar of New York and Connecticut as well as the United States Supreme Court and numerous federal courts initially appeared in Court he was told that he was not permitted to practice before the Greenburgh Drug court. From that moment the situation got worse.
Mr. Tilem observed that this Court was violating numerous constitutional rights of his client and potentially others and reported the conduct to the Deputy Chief Administrative Judge of New York State. After only a couple of hours after the report was made Judge Friedman one of the two judges in the Greenburgh Drug court agreed to comply with the suggestions of the supervising judge. However, when Mr, Tilem appeared next time before Judge Forster, Judge Forster steadfastly refused to comply with basic due process requirements as suggested by the supervising judge. Judge Forster continued to attempt to keep Mr. Tilem from representing his client and permitted the drug court “team” a group of non-judges to vote on matters that can only be decided by a judge such as the issues of bail or sentencing.
Judge Forster told Mr. Tilem and a reporter for the New York Law Journal who wrote a front page article about the matter that because the Court was funded through a federal grant and not through the Court system that they could have their own rules and that the supervising judges were not their supervisors. Judge Forster obviously learned differently when Judge Alan D. Scheinkman, the Administrative Judge for the Ninth Judicial District transferred all of the cases out of the Greenburgh Drug Court to the White Plains Drug Court and leaving Judges Forster and Friedman with no Drug Court cases.
Prior to the actions of Judge Scheinkman, Tilem & Campbell filed an Article 78 seeking to restrain Judge Forster and members of the Drug Court “Team” from continuing a list of illegal activities and from sentencing the firm’s client. On November 25, 2011, an acting Justice of the Westchester Supreme Court signed an order barring Judge Forster from sentencing the Tilem & Campbell client and from continuing other illegal practices that were going on in the Court.
Judge Forster had threatened to give the client one year in the Westchester County Jail for a shoplifting case, a Petit Larceny of less than $250 from a TJ MAXX in the Town of Greenburgh. It was only after Mr. Tilem pointed out that the Court could not conduct the sentencing because Mr. Tilem had not had the required 24 hours to review the pre-sentence report from the Department of Probation, that the sentencing was adjourned giving Tilem & Campbell enough time to file the Article 78 and get the restraining order.
Yesterday, a Judge in the Westchester County Court reversed Judge Forster on the issue of bail. Judge Forster had previously remanded the client, meaning that she was held without bail. Yesterday, after an extensive bail hearing County Court Judge John P. Colangelo agreed that the client should be released on bail.
“Other Judges ruled against Judge Forster every step of the way,” according to Mr. Tilem. “The Supreme Court obviously decided that there was enough evidence of impropriety to issue a stay, an extraordinary remedy. In addition, she was reversed on bail and had her calendar taken away, “according to Mr. Tilem.”

Continue reading

|

In New York there are two different Driving While Intoxicated charges. Driving While Intoxicated under VTL 1192(3) is based upon the officer’s opinion that a motorist is intoxicated. This charge has nothing to do with one’s Blood Alcohol Concentration (BAC) and is referred to as common law DWI. The other Driving While Intoxicated charge in New York is based solely upon one’s BAC being at or above .08 as determined by a chemical test such as a breathalyzer type test and is found at VTL 1192(2).
When one is charged under VTL 1192(2) based upon a BAC of .08 or above, the allegation of a BAC of .08 or above must be supported by non-hearsay evidence. What is called the accusatory instrument will be deemed insufficient if the allegation regarding the .08 BAC is not supported by non-hearsay evidence. In other words, it is insufficient for one officer to allege that the defendant’s BAC was .08 unless that officer administered the test or witnessed the test.
For example, in People v Bonner (Lisa), 31 Misc. 3d 142A (App. Term 2nd Dept. 2011), the Court found the Information (accusatory instrument) insufficient where Officer
Montemurro alleged that defendant’s breath test result revealed a .16% BAC but he did not state that he had administered the test, or observed the test being conducted. Furthermore, the Intoxilyzer 5000 printout card which had allegedly been annexed to the information for the breathalyzer test result included the signature of another officer who had conducted the breathalyzer test. Further, the printout that was signed by another officer did not attest to any personal knowledge nor was it properly verified.
Accordingly, the Court found that the lower court should have granted defendant’s motion to dismiss because “[t]he information did not set forth nonhearsay allegations which, if true, established every element, and defendant’s commission thereof, of the offense charged.” Id.

Continue reading

Contact Information
188 E Post Rd
White Plains, NY 10601
Phone: 914-833-9785Toll Free: 877-377-8666

Attorney Advertising

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, Tilem & Associates, PC
JUSTIA Law Firm Blog Design