New York Criminal Attorney Blog
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.
For more information, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com. More detailed information can be found in our book “Appearance Tickets in New York” available at Amazon.com.