NY Traffic Ticket Lawyer since 2000    

All about being A New York Traffic Ticket Lawyer - NY Traffic Ticket Lawyer news and Stories and background

After handling over 14,000 traffic tickets in New York and New Jersey, I believe that I am qualified to speak on the subject.   When the red lights go on behind someone and police pull over someone to issue them a traffic ticket in New York, such as a speeding ticket on the New York Thruway, 87, 90 or 287, for example, a red light in NYC, passing a school bus in the Bronx, an improper turn in Manhattan, speeding in Staten Island, or any or case in Upstate New York such as in Westchester, Rockland County, Nassau County, Putnam County or Dutchess County, etc, most people lose their minds. Why?  Because most rationally thinking, intelligent drivers, know that in moving violation in New York involves points which can cause an increase your insurance rates. Basically, hiring an attorney to fight a traffic violation the state of New York or New Jersey, is an investment.  as a New York traffic ticket attorney, my fees vary. They can range from a minimum fee to fight a very basic traffic violation, such as failure to observe a traffic control device, to a little more money to fight serious speeding tickets that could cause suspension of your driving privileges, not to mention insurance increases and the New York State DMV tax the driver responsibility assessments. Believe it or not, there are many motorist who call me after receiving traffic tickets in NY, and they tell me that they have paid the ticket and they regret doing so. If the ticket was received outside of the traffic violations Bureau, I may be able to help undo the guilty plea and reset the matter to the court's calendar. With the advent of the driver responsibility tax. However, courts have been more and more unwilling to allow people to rescind their guilty pleas and traffic ticket matters. Nevertheless, it is worth the call or free consultation about your New York traffic ticket. After speaking with a NY traffic ticket attorney such as myself with so much experience I should feel to give you enough information to make an intelligent decision about how to approach your NY speeding ticket, NY passing school bus ticket, NY improper turn ticket, or any other traffic violation. You may receive in New York or New Jersey.

SOUTHEAST, N.Y. � New York State police have issued 29 traffic tickets and made one DWI arrest during a six-hour period. Troopers patrolled I-684 in Westchester and Putnam counties between 9 p.m. Saturday and 3 am. Sunday. say they issued 11 speeding violations, one seatbelt violation and tickets on 17 other offenses. A 29-year-old Carmel man was arrested on a DWI charge in the Town of Southeast. Police say he was driving 97 mph in a 65 mph zone. Dad jumps out of car to save boy, gets traffic tickets It�s things like this that give cops a bad rap. A New Jersey man whose car rolled over a cliff after he jumped out to save his son from falling over the edge was slapped with $110 in traffic tickets Thursday. Frank Roder, 38, of Winifield Park, took his son Aidan to the river to feed ducks after school. Just before he finished parking his Jeep, the boy jumped out of the car and started running toward the edge of the 35-foot cliff nearby, Fox News reported. �I saw him running towards this log... I just envisioned him like, hopping over it to go to the water,� Roder told New Jersey 101.5 radio. �And once you hopped over it was straight down. And I just panicked and jumped out after him.� Roder caught his son just feet before the edge of the cliff, Fox News reported. The two then turned to see the jeep roll straight over the edge into the river below. Union Country police arrived on the scene and a crane pulled the car out of the water. A cop gave Roder two tickets � one for failing to produce the insurance card, which was somewhere in the drowned car, and the other for failing to use his emergency break, Fox News reported. The tickets were for $50 and $60. Roder told Fox News he was shocked. He said the cop told him that if he had just taken five seconds to apply the brake this never would have happened. �I say, �Really? And if I did and my boy stepped over the edge and fell instead of the Jeep, then were would I be?� He says, �Jail, for child endangerment,�� Roder told Fox News. Roder said he actually thought he did put the car in park. He said he grabbed the windshield wiper switch thinking it was the shifter, which is on the steering wheel in his car. He was driving his wife�s car that day, he told 101.5 radio. Roder will appear in municipal court May 30 where he may get forebearance on the tickets. Union County Police Chief Daniel Vaniska told Fox News his officers have some discretion about when and when not to write a ticket, and admitted in this case, �It probably could have gone either way.� New York State -- NY State Police troopers handed out more than 1,900 speeding tickets to New York Thruway drivers during a weeklong August 2012 safe-driving campaign. �Operation Summer Brake� was created by the New York State Police to help prevent reckless driving behaviors and to stress the importance of highway driving laws, according to a state Thruway Authority news release Wednesday. �The busy summer travel season has ended, but �Operation Summer Brake� did its job by heightening motorists� awareness of safe driving in work zones, by ticketing speeders, and aggressive and distracted drivers, and by getting many intoxicated drivers off the roads,� said Thomas Madison, the organization�s executive director, in a statement issued to the press. New York�s state troopers issue more than 900,000 tickets a year, (wow!) even though they total only 6 percent of the state�s law enforcement officers, according to the release. Troopers issue approximately 55 percent of speeding tickets and 47 percent of seat-belt and child-seat law violations, and they make 30 percent of DWI arrests. So slow down out there! New York State Police Troop T Sgt. Thomas Ferritto said in a statement released to the press, that the campaign offered a chance to inform drivers about enforcement efforts across the state of New York. �We are particularly pleased to have the chance to educate motorists about the �move over law� and protect maintenance workers, tow-truck operators and state troopers,� he said. PICKENS, S.C. -- A South Carolina police officer who issued a speeding ticket to Clemson football coach Dabo Swinney was fired after using company equipment to post an account of it on the Internet. Pickens Police Chief Rodney Gregory said in a release that officer Michael McClatchy used a department computer on Sept. 14 to detail what he said happened during the stop. Swinney was clocked going 63 mph in a 35 mph zone on Sept. 3 on the way to his radio call-in show. He was cited for speeding and the officer reduced the penalty to a minimum fine and points, according to Gregory. McClatchy's post said he thought Swinney expected to be excused for the violation. Gregory said Swinney paid the fine and apologized. No. 10 Clemson plays at No. 4 Florida State on Saturday night. NJ woman jailed for decade-old traffic ticket THE ASSOCIATED PRESS Tuesday, June 19, 2012 NEW YORK � A New Jersey woman says she spent a night in a New York City jail after police discovered she had a decade-old traffic summons. Krystle Garcia tells NBC New York that she was arrested Thursday at a Manhattan checkpoint. Garcia was 17 when she received the forgotten summons. It was issued because she did not have an insurance card with her. Garcia said she received, and paid, other tickets in New York after that. She was able to renew her New Jersey driver�s license and registration without any issues. Garcia, who works in New York City, agreed to a $155 fine. But she said her 14-hour ordeal in a holding cell was �horrifying.� She said she shared her story because she doesn�t want it to happen to anyone else. Internet entrepreneur Julien Chabbott, 28, was arrested after he allegedly used his $260,000 (�165,00) luxury Ferrari Spider to run over the foot of a police officer writing him a ticket in New York on Sunday, according to police. Mr Chabbott�s girlfriend, Stephanie Pratt, a reality TV star in the US, watched the drama unfold. As the footage of the incident shows, she later retrieved items from the Ferrari after the arrest and left the scene. The whole scene was captured by 17-year-old New Yorker Damian Morys who was passing the Mercer hotel when the incident happened. He said: "It was a pretty crazy situation. I was definitely at the right place at the right time - I couldn't believe it was unfolding before my eyes and that I was actually capturing it on video. Lathrup Village police will decide later today or Wednesday whether to let stand a traffic citation Detroit Lions defensive tackle Ndamukong Suh received this month for driving without due care and caution. Police Chief William Armstrong said he plans to meet with the city attorney this afternoon to discuss whether that charge should go forward as is, be dropped altogether or whether Suh should be reissued a speeding ticket. Suh was cited Nov. 15 as he drove his black Land Rover northbound on Southfield Road, just north of 11 Mile. Armstrong said no drivers complained about the incident, but the officer who issued the ticket thought Suh was driving at a high rate of speed as he passed cars on the right and nearly caused an accident. After watching dashboard video of the incident, Armstrong said he feels �the charge wasn�t proper for what Mr. Suh did.� �I would have said, if anything, speeding,� Armstrong said. �And looking at the video tape, it�s hard to say exactly how fast he was going. When you look at the video, it appears that he�s traveling faster than the other vehicles around him, but was it excessive? I don�t think it was excessive, and he�s merging over and from what I see on the tape, as far as when he merges over, my opinion, I don�t see the near-accident.� Armstrong said no radar reading was taken. Suh, who has been involved in at least four other traffic incidents since the Lions drafted him with the No. 2 overall pick in 2010, was polite and cooperative during the traffic stop. �The officer was telling him why he stopped him, and Suh was explaining to the officer what he did, and that was, basically, it,� Armstrong said. �It�s hard to hear Suh, but from talking to the officer, there was nothing going on. It sounds like Suh apologized, and that was it.� Last month, Suh was involved in a minor fender bender as he drove to the Lions' practice facility along the Southfield Freeway. Neither driver was issued a ticket. In March, Suh was ticketed for doing 91 m.p.h. in a 55-m.p.h. zone in his native Portland, Ore. Last December, while he was home in Oregon and serving a two-game suspension for stomping on an opponent in a game, Suh lost control of his 1970 Chevrolet Coupeand hit a tree, a light pole and a drinking fountain. He was sued this summer by a passenger in the car. As a rookie, Suh was involved in a two-car accident when a Honda Civic struck his Land Rover as he drove through a Royal Oak intersection. Police ticketed the driver of the Civic. Suh also was ticketed for negligent driving during his final season at Nebraska, when he reportedly sideswiped three parked cars. The Lions did not immediately respond to a request for comment. JACKSONVILLE, Fla. � A Fla. man is in the hospital with life-threatening injuries after he was pulled over by police who found he had been driving with a portion of a traffic sign lodged in his head. Leslie Richard Newton, 63, was driving when he crashed into a median then a traffic sign, but continued driving. Apparently part of the sign went through his windshield and was embedded in his head, according to Action News Jax. Trouble viewing the video? Download Flash player here After officers pulled him over, he was rushed to the hospital with life-threatening injuries. Authorities believe alcohol was a factor in the accident. Nobody else was injured. STATEN ISLAND, N.Y. - Now that's one angry judge. Brian Levine, working on Staten Island for the Department of Motor Vehicles, has the highest conviction rate of any traffic court judge in New York City, and he might also be the angriest. In a March 2011 arbitrator's ruling obtained by the Advance concerning an incident in 2009, Levine was ordered to attend a monitored counseling program to focus on "human relations" and "anger management" after a formal complaint was filed against him for wild outbursts during a routine hearing. After multiple Freedom of Information Law requests, the state DMV refused to release any documentation related to Levine, a public employee, because none of the complaints against him "resulted in a final agency action," according a letter received by the Advance on October 18. Although that was the reason for the DMV's refusal to release information, it seems like there was, in fact, plenty of "action" taken against Levine for his nasty demeanor. In addition to being ordered to seek 35 hours of professional help for anger issues, the arbitrator's ruling also stated that an "appropriate penalty is a written warning to become part of the grievant's personnel file." And an Employee Assistance Program official was to monitor and submit a final report to the DMV's Director of Labor Relations upon Levine's completion of counseling. After the complaint was filed concerning the November 2009 incident, the Advance found that the DMV investigated the incident and gave Levine a notice of discipline dated May 5, 2010. The DMV did not clarify why it refused to originally release the information. In the documentation obtained by the Advance, it appears that formal action was taken against Levine. The DMV also refused to allow Levine to speak with the Advance.  THE COURT INCIDENT All of this began November 18, 2009, when a Metropolitan Transportation Authority mechanic was road testing a bus on an un-named "parkway" that buses are usually not allowed on, but he had a permit allowing him to do so, according the arbitrator's records. An MTA representative for the mechanic brought in a photocopy of the permit to court, thinking that the ticket would be thrown out, but he was "treated abrasively, demeaned and insulted," by Levine, according to the arbitrator's records. Staten Island Advance photoBy the numbers, Judge Brian Levine is the toughest administrative judge employed by the state Department of Motor Vehicles, with an 87.1 percent conviction rate. Also included was a brief transcript of exactly what Levine said during the November 2009 hearing. Despite being an MTA representative and having a photocopy of the permit, Levine said: "No photocopies. Not that I'm telling you that you guys would have the audacity to make phony photocopies. I'll be very blunt with you. I think you guys would. OK. I don't trust the MTA. I don't trust any government agency." Levine went on to rail against MTA bus drivers that he sees "on that parkway every day, and I'm fed up with seeing your buses on there." He then goes on to threaten to "have him arrested" if the permit was forged in any way, yelling in a fevered pitch at the attorney, according to his account.  OTHER COMPLAINTS When he's not screaming and berating motorists, Levine can often be seen doodling on a note pad not even giving defendants the appearance that he is listening to them, said another lawyer with knowledge of the DMV's administration who wished to remain anonymous. "He makes the motorist feel that he is not listening and not giving them a chance to present their case," the lawyer said. "It's frustrating. The whole bias there is that the motorist is guilty until proven innocent. Justice is not being dispensed in that court." This lawyer said aside from the judge's personal bias against motorists, the entire traffic court system in the city breeds bias. Levine, a DMV employee who in 2011 raised more than $1 million in fines for his employer, might get a free pass for his actions based on that figure, which is by far the most money raised by a traffic judge in New York City. "For the most part they back him up because of the money he brings in," the lawyer said. "How he speaks to people in the courtroom, his tone, his manor, his demeanor is inappropriate." So has Levine mellowed since his anger management training? Islanders who have come before him don't seem to think so. "Levine is the worst," said Frank Ciaramella of Annadale, who appeared before Levine for a seat belt violation. "He's demeaning. He's got a bad attitude, and he should not be sitting there. He's got a chip on his shoulder the size of New York. For whatever happened in his past he should not take it to work with him." A woman who wished to remain anonymous said it was obvious that Levine was not even listening to her, and he fined her for being on a cell phone. She claims she was not, and said she had proof. "He totally took the officer's side; he didn't what to hear it," she said. "I brought the proof of my incoming, my outgoing and my missed calls; he said it's not acceptable." She produced a print-out from the phone company of her call records and Levine did not accept it as proof that she was not driving while on her cell phone. Police say a traffic citation issued to Lions defensive tackle Ndamukong Suh in suburban Detroit will stand. Lions DT Ndamukong Suh avoided suspension after his actions against Texans QB Matt Schaub. Lathrup Village Police Chief William Armstrong said Tuesday he wasn't sure the Nov. 15 citation for driving without due care and caution would hold up after having watched video footage of Suh's driving that day. But after consulting with the city attorney, Armstrong said Wednesday the decision was made to go forward and have Suh ''either pay the fine or fight the ticket.'' An officer wrote up Suh after seeing the third-year pro driving fast and passing cars from the right lane. Suh has been sued for $1 million by a woman who claims she was injured when Suh was in a car crash last December in Portland, Ore. Most Tickets Written: Washington, DC WashingtonDC Ohio residents will be surprised that it�s Washington, DC (yeah, not technically a �state,� but whatever) that writes the most speeding tickets. With just over half a million residents, DC�s Finest writes more than 430,000 tickets a year. It beats out the next state in the top ten � Wyoming � by a factor of ten. Save your money. Visit some other place. Most Unmarked State Police Cars: Connecticut Connecticut In all my years driving in New England, I�ve never seen a fully marked Connecticut State Police car. That�s because only one is assigned to every troop. Apparently, they�re white with yellow and blue markings. Most Connecticut State Police cars are silver, with a pushbar up front and a low-profile lightbar on the roof, which carries the only �State Police� marking on the car. Connecticut�s also been notorious for using Camaros, Mustangs, Grand Nationals and other non-traditional cars as unmarked patrol cars on the state�s highways. The New York City Police Department today announced the results of a speed enforcement initiative conducted citywide this past weekend. Officers issued 736 speeding summonses to motorists. The initiative is a part of the NYPD�s efforts to limit speeding and traffic infractions that cause death and injury. Traffic fatalities are down 30 percent over the past decade but speeding remains the leading contributor of collisions citywide. There were 266 summonses issued in Queens, 213 in the Bronx, 113 in Brooklyn, 97 in Manhattan and 47 in Staten Island. The anti-speeding initiative began on Friday, October 11th and ended on Sunday, October 13th. The city has established 14 neighborhood �slow zones� and is in the process of finalizing 15 additional. Nine-hundred and ten speed bumps have been installed, and anti-speed zones near 146 schools have been implemented in the last six years. Various initiatives to combat speeding include the city�s first speed cameras installed earlier this fall, the neighborhood slow zones, and speed bumps. The NYPD encourages safe driving and reminds the public to obey the speed limit, which in New York City is 30 miles per hour on local streets unless otherwise posted. It is against the law to exceed 50 mph in New York City. Speeding fines start at $90 and can be as high as $600. Drivers earn from 3 to 11 penalty points for speeding infractions. Swedish multi-millionaire Anders Wiklof was driving a little too fast. Wilkof, a business man in his native Sweden, was pulled over in neighboring Finland for driving 48 in a 30 MPH zone. He expected a ticket and a fine but was shocked to find out how much it would cost him. The New York Daily News reports that Wiklof was fined a jaw-dropping amount. A Swedish multimillionaire has been fined $130,000 for speeding � because he is so rich. Had he been caught in Sweden, he would have faced a $615 penalty. But fines in Finland are issued based on the driver�s wealth � and with Wiklof having so much cash, he was hit with the much heftier fee. via Swedish multimillionaire slapped with $130,000 speeding ticket � because he�s rich � NY Daily News. As if out of a Charles Dickens novel, people struggling to pay overdue fines and fees associated with court costs for even the simplest traffic infractions are being thrown in jail across the United States. Critics are calling the practice the new "debtors' prison" -- referring to the jails that flourished in the U.S. and Western Europe over 150 years ago. Before the time of bankruptcy laws and social safety nets, poor folks and ruined business owners were locked up until their debts were paid off. Reforms eventually outlawed the practice. But groups like the Brennan Center for Justice and the American Civil Liberties Union say it's been reborn in local courts which may not be aware it's against the law to send indigent people to jail over unpaid fines and fees -- or they just haven't been called on it until now. Advocates are trying to convince courts that aside from the legal questions surrounding the practice, it is disproportionately jailing poor people and doesn't even boost government revenues -- in fact, governments lose money in the process. "It's a waste of taxpayer resources, and it undermines the integrity of the justice system," Carl Takei, staff attorney for the ACLU's National Prison Project, told FoxNews.com. "The problem is it's not actually much of a money-making proposition ... to throw people in jail for fines and fees when they can't afford it. If counties weren't spending the money jailing people for not paying debts, they could be spending the money in other ways." The Brennan Center for Justice at New York University's School of Law released a "Tool Kit for Action" in 2012 that broke down the cost to municipalities to jail debtors in comparison with the amount of old debt it was collecting. It doesn't look like a bargain. For example, according to the report, Mecklenburg County, N.C., collected $33,476 in debts in 2009, but spent $40,000 jailing 246 debtors -- a loss of $6,524. Fines are the court-imposed payments linked to a conviction -- whether it be for a minor traffic violation like driving without a license or a small drug offense, all the way up to felony. Fees are all those extras tacked on by the court to fund administrative services. These vary from jurisdiction to jurisdiction, with some courts imposing more than others. As states and counties grapple with shrinking budgets and yearly shortfalls, new fees are often imposed to make up the difference, though they can be quite overwhelming to individuals passing through the system -- 80 percent of whom qualify as indigent (impoverished and unable to pay), according to the Brennan Center. Florida, for example, has added 20 new fees since 1996, according to the center. North Carolina imposes late fees on debt not paid and surcharges on payment plans. More and more, courts are dragging people in for fines and fees that have ballooned due to interest imposed on the initial sums. Some owe money to the public defender's office for the representation they received during their time in court. Others incur hundreds of dollars in fees while they're incarcerated -- for everything from toilet paper to the beds inmates sleep on. The tab for the average offender could be as low as $250 or as high as $4,000. Both the ACLU and Brennan have been targeting big states with multiple jurisdictions they say are flouting U.S. Supreme Court rulings in 1970, 1971 and 1983. Those rulings essentially say courts cannot extend or impose a jail sentence for unpaid fines and fees if individuals do not have the ability to pay. At the very least, according to the high court, the courts must inquire and assess whether a person is indigent and might benefit from an alternative method of payment, like community service, before sentencing. "Even though a lot of jurisdictions do have statutes on the books that allow judges to waive fines and fees, it doesn't always happen," explained Lauren Brooke-Eisen, counsel for the Brennan Center's Justice Program. Much of the time, probation or the conviction itself will hinder individuals from finding employment (Brennan estimates that some 60 percent are still unemployed a year after leaving jail). But another incarceration over debt could either ruin the job they managed to get or make it even harder to find one. Many jurisdictions have taken to hiring private collection/probation companies to go after debtors, giving them the authority to revoke probation and incarcerate if they can't pay. Research into the practice has found that private companies impose their own additional surcharges. Some 15 private companies have emerged to run these services in the South, including the popular Judicial Correction Services (JCS). In 2012, Circuit Judge Hub Harrington at Harpersville Municipal Court in Alabama shut down what he called the "debtors' prison" process there, echoing complaints that private companies are only in it for the money. He cited JCS in part for sending indigent people to jail. Calling it a "judicially sanctioned extortion racket," Harrington said many defendants were locked up on bogus failure-to-appear warrants, and slapped with more fines and fees as a result. Repeated calls to JCS in Alabama and Georgia were not returned. Defenders of the collection programs say the money is owed to the state and it's the government's right to go after it. "When, and only when, an individual is convicted of a crime, there are required fees and court costs," Pamela Dembe, president of the First Judicial District of Pennsylvania, which oversees Philadelphia, said in a statement to reporters in May. An earlier review by the courts found an estimated 400,000 residents owed the city money. "If the defendant doesn't pay, law-abiding taxpayers must pay these costs." Meanwhile, there's evidence that groups like the ACLU are prompting reforms. For example, the ACLU released "The Outskirts of Hope," on court practices in Ohio. The report told the story of one couple, John Bundren and Samantha Reed, who both had racked up court fines. Bundren's, which traced back to underage drinking and public intoxication convictions from his teenage years, totaled $3,000. They paid her fines before his, and Bundren ended up spending 41 days in jail because he couldn't pay his own. The ACLU found that seven out of 11 counties they studied were operating de facto debtors' prisons, despite clear "constitutional and legislative prohibitions." Some were worse than others. In the second half of 2012 in Huron County, 20 percent of arrests were for failure to pay fines. The Sandusky Municipal Court in Erie County jailed 75 people in a little more than a month during the summer of 2012. The ACLU says it costs upwards of $400 in Ohio to execute a warrant and $65 a night to jail people. As a result of the study, the Ohio State Supreme Court has begun educating judges and personnel on the statutes and constitutional restrictions of collecting fines and fees, Bret Crow, spokesman for the state court, told FoxNews.com. It is also developing a "bench card," intended as a reference guide for county judges. More recently in Colorado, the state ACLU completed a report on "pay or serve" programs throughout the state. In the case of Wheatridge and Northglenn counties, the penalty was one day in the clink for every $50 owed; in Westminster, every offender got an automatic 10 days in jail. The report also found that one jail racked up more than $70,000 in costs for incarcerating 154 people over a five-month period in 2012 -- and only managed to collect $40,000 in overdue fines and fees in that time. Mark Silverstein, a staff attorney at the Colorado ACLU, claimed judges in these courts never assess the defendants' ability to pay before sentencing them to jail, which would be unconstitutional. John Stipech, Municipal Court judge in Westminster, Colo., told FoxNews.com he agreed with the tenets of the ACLU investigation, but added that the practice of the automatic 10-day jail sentence was already scrapped by Westminster in December 2012. "It was because we had jail space problems and beds needed to be limited to actual criminals," he said. He complained that local coverage of the ACLU report "makes it sound like we're putting everyone in jail." He said he asks everyone who comes before him if they have the ability to pay. He acknowledged, however, that his court is working with the ACLU and will be instituting formal "show cause" hearings to determine indigence. "Maybe the ACLU did some good, they brought it to my attention. Maybe they just should have done it in a better way," Stipech said. Brooke-Eisen said the reform movement is proceeding, albeit slowly in tough fiscal times. "A lot of the jurisdictions are still using fines and fees and passing legislation to add more fees and fines," she said. A man in Finland faces a huge fine for speeding. Reima Kuisla was on his way to the airport and he says he was going 103 KPH (64 MPH) in a 80 KPH (50 MPH) zone when he got pulled over by the police. In Finland, traffic fines are partially based on income. It turns out that Kuisla is a millionaire so when the officer looked up his tax return and did the math, he handed the driver a fine worth about $60,000. An upset Kuisla wrote on his Facebook page: "It is no wonder that many people considering moving out of here."

Here are a few sample appeals I recently won: 16 Misc.3d 133(A), Slip Copy, 2007 WL 2254315 (Table) Supreme Court, Appellate Term, New York, 9th and 10th Judicial Districts. The PEOPLE of the State of New York, Respondent, v. Avraham BERGER, Appellant. No. 2006-1949 OR CR. July 12, 2007. Appeal from a judgment of the Justice Court of the Town of Tuxedo, Orange County (Loretta Davis, J.), rendered October 31, 2006. The judgment convicted defendant, after a nonjury trial, of speeding. Present: RUDOLPH, P.J., McCABE and TANENBAUM, JJ. *1 Judgment of conviction reversed as a matter of discretion in the interest of justice, fine, if paid, remitted and information dismissed. Under the circumstances presented, we are of the view that defendant should not have been tried on the new information following the dismissal of the simplified traffic information on the court's own motion on the day of trial ( see People v. Rosenfeld, 163 Misc.2d 982, 983 [App Term, 9th & 10th Jud Dists 1994]; People v. Aucello, 146 Misc.2d 417 [App Term, 9th & 10th Jud Dists 1990]; cf. People v. Nuccio, 78 N.Y.2d 102 [1991] ). Were we not inclined to reverse the conviction and dismiss the information as a matter of discretion in the interest of justice, we would still find it necessary to reverse the conviction on the law, and order a new trial, in view of, inter alia, the omission to inform defendant of his rights to counsel and an adjournment to obtain counsel (CPL 170.10[3], [4]; People v. Rios, 9 Misc.3d 1 [App Term, 9th & 10th Jud Dists 2005] ). Moreover, the pro se defendant should have been informed that he had an option to testify or not. Instead, he was told by the court at the start of the trial that after the officer's testimony, “... you can ask questions of him and then you will give your testimony under oath....” The court subsequently stated, “Now I'm going to ask for your testimony. So I'm going to have you tell me what happened, okay, Mr. Berger.” This error proved to be prejudicial, since defendant admitted upon the witness stand that he had been speeding and since the court expressly took note of said admission in finding him guilty. Accordingly, the judgment of conviction is reversed and the information dismissed. RUDOLPH, P.J., McCABE and TANENBAUM, JJ., concur. N.Y.Sup.App.Term,2007. People v. Berger Slip Copy, 16 Misc.3d 133(A), 2007 WL 2254315 (Table) (N.Y.Sup.App.Term), 2007 N.Y. Slip Op. 51498(U) Unreported Disposition END OF DOCUMENT

[*1] Supreme Court, Appellate Term, Second Department, December 31, 2009 APPEARANCES OF COUNSEL Matisyahu Wolfberg, Spring Valley, for appellant. Michael L. Klein, Town Attorney, Suffern, for respondent. {**26 Misc 3d at 75} OPINION OF THE COURT Memorandum. Ordered that the judgment of conviction is reversed, on the law, and the matter is remitted to the Justice Court for a new trial. Defendant was charged by simplified traffic information with speeding (Vehicle and Traffic Law � 1180 [d]). It is not disputed that the complainant police officer timely mailed a copy of the supporting deposition to defendant in an envelope directed to him at the address he had provided on the back of the appearance ticket. The envelope was returned unopened by the post office to the sender with the notation "ATTEMPTED—NOT KNOWN." Contrary to defendant's contention, the mailing constituted the service upon him required by CPL 100.25 (2) (see generally CPLR 2103; People v Godoy, 180 Misc 2d 771, 773 [Crim Ct, NY County 1999]; cf. People v Hollinger, 15 Misc 3d 130[A], 2007 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2007]). Even if we assume, arguendo, that defendant's challenge to the sufficiency of the proof of proper venue in the Justice Court of the Town of Ramapo (see CPL 100.55 [4]) is not waived (compare People v Dandridge, 45 AD3d 330, 331 [2007], with People v Sandoz, 248 AD2d 334 [1998]; cf. People v Carvajal, 6 NY3d 305, 311-312 [2005]; People v Williams, 24 Misc 3d 131[A], 2009 NY Slip Op 51358[U] [App People v Schonfeld 2009 NY Slip Op 29529 [26 Misc 3d 74] Accepted for Miscellaneous Reports Publication AT2 Published by New York State Law Reporting Bureau pursuant to Judiciary Law � 431. As corrected through Tuesday, April 13, 2010 The People of the State of New York, Respondent, v Fred Schonfeld, Appellant. Term, 9th & 10th Jud Dists 2009]), it is not preserved for appellate review, and we decline to reach it in the interest of justice. Moreover, in our view, we are not required to reach the question whether the verdict of guilty was against the weight of the evidence on this venue issue (see People v Greenberg, 89 NY2d 553, 555-556 [1997] ["(v)enue is not an element of the offense"]; cf. People v Danielson, 9 NY3d 342 [2007]; People v Cullen, 50 NY2d 168, 173 [1980] [jury's implicit finding on venue was subject to weight of the evidence review]; People v Lightbody, 62 AD3d 632, 633 [2009] [same]), and we decline to do so.[*2] Defendant's challenge to the sufficiency of the identification evidence is not preserved, and we decline to reach it in the interest of justice. Were we to reach it, we would find that it{**26 Misc 3d at 76} lacks merit. Furthermore, according, as we must, great deference to the Justice Court's credibility determinations (see People v Lane, 7 NY3d 888, 890 [2006]; see also People v Romero, 7 NY3d 633, 644- 645 [2006]), upon our own review of the evidence (see People v Danielson, 9 NY3d 342 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]) we are satisfied that the verdict was not against the weight of the evidence. We reverse the conviction, however, for the following reasons. Defendant appeared on the trial date without counsel. The Justice Court failed to give him the required advisements of, among other things, his rights to counsel "at every . . . stage of the action" (CPL 170.10 [3]) and to an adjournment for the purpose of obtaining counsel (see CPL 170.10 [3] [a]; [4] [a]). We note that the appearance ticket did not adequately inform him of these rights (cf. CPL 170.10 [5]). Furthermore, prior correspondence from the court had not sufficiently alerted him to his right to counsel, particularly because, under the circumstances presented, he could reasonably have believed that his appearance on the trial date was for the purpose of having the simplified traffic information dismissed. Finally, the court should have granted defendant's request for an adjournment for the very purpose of obtaining counsel (see CPL 170.10 [4] [a]). Accordingly, the judgment of conviction is reversed and the matter is remitted to the Justice Court for a new trial. Nicolai, P.J., Tanenbaum and Molia, JJ., concur.

PRELIMINARY STATEMENT AND PROCEDURAL HISTORY     Appellant was convicted of 2 counts of Speeding (Vehicle & Traffic Law � 1180(d) and �1180(a) – speed imprudent) and one count of VTL � 1172 – failure to stop for a stop sign, on September 15, 2009 in Ramapo Town Court, Rockland County, after a bench trial over which the Hon. Samuel Colman, Ramapo Town Justice presided.      Appeal was commenced on October 13, 2009, with the filing of a Notice of Appeal on the lower court.     FIRST QUESTION PRESENTED Whether the Trial Court erred in entering a conviction for speeding 55 mph in a 30 mph zone, when the issuing officer did not produce calibration records for his speedometer. STATEMENT OF FACTS There were two speeding tickets issued to the appellant.  One was for speeding 55 mph in a 30 mph zone.  At trial the officer testified that he determined the speed of the appellant’s vehicle via the “pace method.”  The officer did not produce at trial any speedometer calibration.  Defense counsel objected to the witness/officer testifying as to the pace of the appellant’s vehicle based on the lack of production of the calibration records for the police vehicle.   ARGUMENT        To establish a pacing charge, the officer must testify to a series of events.  First, the officer must testify that he began to follow the defendant.  He will then have to testify that there came a time that he established a uniform distance between the patrol vehicle and that of the target vehicle.  The officer will then have to testify that he had to accelerate in order to establish that uniform distance.  The officer must then testify that he maintained a constant distance, in feet or car lengths, between the patrol vehicle and the target vehicle.  Following this, there will have to be testimony of a particular distance at which the patrol vehicle followed the target vehicle while maintaining a constant distance between the two.  The officer will then have to testify that he followed the target vehicle for a quarter mile or more.     The officer will then have to testify that he viewed her speedometer during the period of the pace and obtained a speedometer reading.  The officer must then lay a foundation for the admission of her speedometer calibration record.  In order to get the speedometer deviation record into evidence, the prosecution must lay a foundation pursuant to CPLR � 4518(a).  In this case, the officer did not testify to the above requirements of a vehicle pace case.      The officer testified at trial (transcript p. 5, lines 6-7) that he paced the vehicle.  Similarly, he indicated on the summons in question (UTT# BB6068403) that the speed estimation was by “Pace w/car 4418).  Yet, the officer did not offer any speedometer of his vehicle reading into evidence.  Because his estimation of the speed was based on the pace of a vehicle, he would have had to have produced his police vehicle’s speedometer calibration, which he did not.  Trial counsel correctly objected to the pace testimony.  Therefore, the court was in error in allowing the testimony about the pace into evidence.  Thus, the conviction for the speeding 55 mph in a 30 mph zone was erroneous and should be reversed and the charge dismissed.   SECOND QUESTION PRESENTED Whether the Trial Court erred by violating appellant’s rights against Double Jeopardy. STATEMENT OF FACTS     The officer issued two speeding tickets for alleged conduct arising out the same incident.   One was a speeding ticket under VTL � 1180(d) for allegedly speeding 55 mph in a 30 mph zone and the second speeding ticket was under VTL � 1180(a), for imprudent speed. ARGUMENT The relevant portion of the 5th Amendment of the US Constitution provides that "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb..."  This clause of the 5th Amendment applies to the States through the 14th Amendment. (Benton v. Maryland, 395 U.S. 784 (1969)  The New York State Constitution also prohibits Double Jeopardy (Article 1,  � 6; see also CPL Art. 40) NY � CPL 40.20(2) provides:    “A person may not be separately prosecuted for two offenses based  upon the same act or criminal transaction unless:    (a)  The offenses as defined have substantially different elements and  the  acts  establishing  one   offense   are   in   the   main   clearly  distinguishable from those establishing the other; or    (b)   Each of the offenses as defined contains an element which is not  an element of the other, and  the  statutory  provisions  defining  such  offenses  are  designed to prevent very different kinds of harm or evil;” In People v. Kinnaman, (298 A.D. 2d 902, 747 N.Y.S 2d 842, 4th Dept. 2002) the court stated the principle that where the proof necessary to establish the elements of a traffic infraction where the same, a guilty plea to one traffic infraction would bar punishment under the Double Jeopardy Clause for the second violation for the same offense.   In  People v Dinneen (29 Misc.2d 465, 221 N.Y.S.2d 197, (1961)) the court held it would violate a defendant's right against Double Jeopardy to be punished for two speeding convictions which occurred in adjacent jurisdictions, because the speeding constituted a single, uninterrupted act. In our case, the two speeding tickets constituted a single uninterrupted act.  The officer was following the appellant’s vehicle when he witnessed the alleged speeding.  We ask rhetorically:  Would it be fair for the officer in this case to issue 5 speeding tickets, one for each block which the appellant passed?  Thus, it was improper to allow prosecution of appellant on both speeding tickets.  The elements of 1180(a) (imprudent speed) are arguably a lesser-included offense of 1180(d). Thus, the remedy thereof is that the charge for imprudent speed should be dismissed. Furthermore, upon making his ruling regarding the VTL 1180(a) charge (speed imprudent) the Trial Court found the appellant guilty of speeding 5 mph over the limit.  This is clearly a repugnant verdict, because the offense in question � 1180(a) does not specify a speed.   THIRD QUESTION PRESENTED Whether the Trial Court erred by entering a conviction when there was no testimony as to Jurisdiction STATEMENT OF FACTS The trial transcript does not reflect that the issuing officer testified as to jurisdiction.  ARGUMENT The Town of Ramapo Police, the agency, which employs the testifying officer, is responsible for patrolling many villages in the Town of Ramapo.  Many of the villages where the Town or Ramapo patrols maintain their own Justice Courts.  NY CPL � 100.55(4) provides that  “An  information,  a  simplified  information,  a  prosecutor's  information or a misdemeanor complaint may be filed with a town court of a  particular  town  when  an  offense  charged  therein  was  allegedly committed anywhere in such town other than in a village thereof having a  village court.” (emphasis added)  Thus, it cannot be assumed that the officer was within the jurisdiction of the court when he allegedly witnessed the offense, because he patrols many separate jurisdictions, which maintain their own justice courts. Jurisdiction is a necessary element to all of violations.  There is no testimony of jurisdiction by the officer. Therefore, the people did not meet their burden of making a prima case.  Thus, all convictions must be reversed and dismissed. Conclusion            The convictions of speeding 55 mph in a 30 mph zone must be overturned and the charges dismissed because the appellant was convicted based on insufficient and inadmissible evidence, namely the pace was unsubstantiated.  Furthermore, the prosecution for imprudent speed was improper in that it arose out of the same facts and circumstances of the other speeding ticket issued at the same time and thus violated his right against Double Jeopardy.  Finally, there was no testimony as to jurisdiction, thus all convictions including the stop sign violation should be reversed and dismissed.             Respectfully submitted, Dated: August 5, 2010                                          _______________________                         Matisyahu Wolfberg                         Attorney for the Appellant                         25 Robert Pitt Drive, Suite 211                                    Monsey, New York 10952                         (845) 362-3234

 

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