State of New YorkGreenburgh Town CourtCounty of Westchester
The People of the State of New York, Affirmation of Defense Counsel on Motion to Dismiss Simplified Traffic Information on Speedy Trial Grounds
Plaintiff -Versus- XXXXXX,MU0XXXXXXDefendant
Matisyahu Wolfberg, an attorney admitted to practice in New York State, affirms under penalty of perjury that:1. I am the attorney for Alan Breitman, defendant herein. I make this affirmation based upon information and belief in support of a motion to dismiss the traffic informations herein. I make this motion to request dismissal pursuant to CPL § 30.20 and based on the 6th and 14th Amendments to the U.S. Constitution, namely the denial of the right to a Speedy Trial. The constitutional right to a Speedy Trial applies to all prosecutions (People v. Wertheimer, NYLJ, June 5, 1986, at 15, col 5 [App Term, 2d & 11th Jud Dists]). including prosecutions for traffic violations (People v. Thorpe, 160 Misc.2d 558 (1994) 613 N.Y.S.2d 795, People v. Taylor, 189 Misc. 2d 313, 731 N.Y.S.2d 324 (app. Term 2001)) In considering a motion to dismissed based on the Constitutional right to a speedy trial, the court must weigh the factors set out in the five sections that follow (People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79 (1975)): A. Extent of delay The trial date the defendant was directed to appear in court was Oct. 25, '10 2:00 pm, which is well over two years after the ticket was issued. An unexplained delay of over two years in bringing a simple traffic infraction to trial warrants dismissal based a denial of the right to a Speedy Trial. (People v. Thorpe, 160 Misc.2d 558 (1994) 613 N.Y.S.2d 795) B. Reason for the delay Unknown C. Nature of underlying charge The charge is a violation. In general, the less serious the charge, the more likely the court should dismiss it on Constitutional grounds (People v. Jackson, 178 A.D.2d 305 (1991), People v. Vernance 96 N.Y.2d 778 (2001)) D. Extent of Pretrial incarceration N/A E. Whether Defense was impaired by delayThe passage of time has caused the memory of the defendant to be blurred to the extent that the defendant does not remember the incident clearly enough to be able to articulate a defense of testify on his own behalf as is his 5th Amendment right to do so. This impairs the defense tremendously.3. If the People wish to oppose this motion, such response must be in writing. Where the prosecution submits no written response in opposition, the defense allegations are deemed admitted. (People v. Cole, 73 N.Y.2d 957, 540 N.Y.S.2d 984, 538 N.E.2d 336 (1989)). Furthermore, When a violation of the constitutional right to speedy trial is found, the remedy is dismissal, which precludes further prosecution of the dismissed charge. (People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79 (1975))4. No previous request for the relief sought has been made. WHEREFORE, it is requested that the court dismiss traffic infraction based on the denial of the defendant's constitutional right to a Speedy Trial, and for such other relief as is just and proper.Dated: October 18, 2012
Matisyahu Wolfberg, Esq.
25 Robert Pitt Drive, Suite 211
Monsey, New York 10952
Phone (845) 362-3234 Fax (845) 818-3905