Defending a Traffic Ticket in New York
By Matisyahu Wolfberg, Esq.
25 Robert Pitt Drive, Suite 211
Monsey, New York, 10952
I. Introduction to Vehicle and Traffic Law.
a. Laws found in VAT at, for example http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS
b. Contact me with questions and further info at www.notspeeding.com
II. Do points transfer from out of state
a. Points only transfer from Ontario and Quebec, not from New Jersey or any other state
III. Traffic Violation Bureau Tickets TVB
a. Violations received in 5 Boroughs, Rochester, Buffalo, and some jurisdictions in Suffolk County
b. Administrative hearing
i. Clear and convincing evidence
ii. No plea bargaining
iii. Administrative hearing officers – lawyers, not judges
c. How to plead not guilty
ii. Mail in ticket
iii. Plead not guilty in person in one of the TVB offices
iv. Attorney may appear for motorist, client need not appear
d. How to win
i. Officer is no show 2-3 times
ii. Officer does not have his notes
iii. Catch the officer in a mistake during trial
e. Conviction rate is high
i. Officer need not present written proof of radar and speedometer calibration
f. 30 days to appeal
i. appeals can be initiated on-line
- can appeal sentence and/or conviction
ii. must order transcript
iii. appeals are all on submission – no oral arguments
IV. All other courts
a. Traffic violations are “quasi-criminal"
i. Almost all violations can carry a minimum of 15 days in jail
ii. Unethical to guarantee the results
iii. Right to represented by retained (as opposed to appointed) counsel.
iv. Right to request adjournment to retain attorney
v. Speedy Trial – constitutional right to have trial within 2 years
- People v. Thorpe (see case materials)
vi. Double Jeopardy
- can’t be issued 2 speeding tickets for speeding on same road, for example
vii. Right to remain silent – don’t need to testimony
b. Majority are plea bargained.
c. Not guilty plea and process
i. Fill out ticket and mail it in
ii. Most courts will accept attorney’s letter for not guilty in place of original tickets
iii. State Trooper tickets
- negotiate with District attorney or Local Prosecutor
a. call court to find out who is prosecutor
iv. Local officers
- either negotiate with them directly or with local prosecutor
v. Clients need not show up
must have notarized affidavit authorizing attorney to appear without client and plea to a lesser charge
some courts require original document, some accept copy of affidavit.
vi. Payment of fine
most courts give time to pay
more and more courts accept credit card
pay on line with government payment service
money order to court
license gets suspended if not paid on time
d. Right to supporting deposition
i. Most tickets today are electronic and depositions are provided at time of ticket being issued
ii. If not provided at time, have 30 days to request from return date on ticket
officer then has 30 days to serve the deposition on defendant or attorney if represented by attorney and file and proof of service with court.
If motorist is represented by attorney, service must be on attorney
iii. Remedy for not providing supporting deposition
Officer can reserve ticket in form of “Long Form"
a. However seePeople v. Rosenfeld
- Some courts require motions to dismiss to be in writing with notice to the people and within 45 days of first appearance in court.
i. People must make prima facie case
- Read law to determine elements of violation
a. After People’s case, if they left out an element, make a “Trial Order for Dismissal" for failure to make out a prima facie case.
Standard of proof is beyond a reasonable doubt
no jury trial unless a misdemeanor
a. such as aggravated unlicensed driver (driving on suspended license)
b. reckless driving
c. drunk driving
d. driving while registration revoked
V. Appeals in Courts outside of TVB
a. 30 days to file “Notice of Appeal"
b. Appealing party (usually defendant in our context) is known as Appellant
i. Must order transcript and serve Prosecutor who is known as “Respondent" in appellate practice.
ii. Must keep track of timeliness
c. Appeals in NYC area (outside the TVB) in for example, Nassau County, Orange, Rockland, Dutchess and Westchester Counties
i. Heard in the Appellate Term
d. Appeals in other Upstate Counties such as and Sullivan
i. Hear in County Court