• THE TRAFFIC STOP

Types of traffic stops by police officers are common question at my office.  Everyone seems to think that you can be pulled over “when you do something wrong” and that’s true but the Vehicle and Traffic Law goes beyond that and makes rules to protect driver’s.  A general understanding of the law will help you be prepared as you drive the roads of New York State and help you protect your rights.

• THE BAD TRAFFIC STOP

The police may NOT stop a vehicle on a public highway for a routine traffic check.  ONLY when the officer has “reasonable suspicion” to believe that a violation or crime is committed may the vehicle be stopped.  People v Ingle, 36 NY 2d 413.  A police officer’s good faith but erroneous belief that a person committed a traffic infraction (failing to signal when exiting a private driveway) will not support a stop.  Byer v Jackson, 241 AD 2d 943.

• TRAFFIC COURT

In New York Traffic Court either at the Traffic Violation Bureau (TVB) or in the local justice Courts, the Courts must evaluate police conduct and determine whether the action taken was justified in its inception and at every subsequent stage of the encounter.  People v Nicodemus, 247 AD 2d 833.  However, a police officer’s failure to issue a ticket for a traffic infraction that was the basis for the stop does not defeat probable cause.  People v Ferraiolo, 309 AD 2d 981.

• DWI STOP AND ARREST

In a DWI arrest the office first needs a reason to pull you over.  Most police officers will find a violation of the vehicle and traffic law such as speeding, weaving out of lane or as a last resort a police officer may use an equipment violation if they suspect a motorist is driving DWI.  Importantly, weaving or swerving IN a lane is not a traffic infraction and does not constitute reasonable suspicion.  People v Culcross, 184 Misc. 2d 67.  A stop for unsafe lane change requires a driver to signal each time when changing lanes as well as turning.  People v Rice, 44 AD 3d 247.  Lastly, stopping a car and approaching it with guns drawn based upon an anonymous report was improper, where there was no reasonable suspicion.  People v Heapps, 13 AD 3d 107.

• REASONABLE SUSPICION

Reasonable suspicion is the standard the police must use to pull over a motorist.  This is always the first line of attack when defending a traffic ticket or a move serious charge such as DWI, DWAI, DUI or even traffic stops that result in other charges such as drug or gun charges.  Reasonable Suspicion is that amount of knowledge sufficient to justify  a stop.

• NEW YORK STATE TRAFFIC VIOLATION ATTORNEYS

If you have any questions about when can the police pull you over contact one of the attorneys at Riebling, Proto & Sachs, LLP.  We offer a free consultation.  Our attorneys regularly appear in the traffic Courts of New York State including the New York TVB and the local justice Courts.  Our main office is in White Plains, New York but we also have offices in the Putnam and Orange Counties.

Our attorneys work to protect your license and insurance rates.

Good luck on the road.

A topic of usual concern for clients involved in both Family Law Cases and Criminal Defense Cases is the issuance of an order of protection by the court.  The attorneys at Riebling, Proto & Sachs, LLP regularly appear in the Family Courts and Criminal Courts of Westchester, Orange, Rockland, Dutchess, Putnam, the Bronx, Brooklyn, Queens, and New York to defend clients against the issues that arise when an order of protection is issued.

An order of protection may be granted in a number of different cases pursuant to various criminal and civil statutes, including Criminal Procedural Law sections 530.12(1) and 530.13(1); Articles 3, 4, 5, 6, 7, 8 and 10 of the Family Court Act; and Section 240(3) of the Domestic Relations Law.  Generally, orders of protection fall under two categories, temporary and permanent.  A temporary order of protection is typically made during the pendency of the action.  A permanent order of protection is usually issued at the conclusion or disposition of the case.  Frequently, temporary orders of protection precede permanent orders of protection.  

New York Law prohibits the extension of an order of protection to a person(s) unrelated to the underlying criminal action.  See People v. Konieczny, 2004 WL 1263762 (N.Y. 2004).  The order of protection may cover the complainant and family or household, but not beyond.  People v. Petrusch, 306 A.D.2d 889.

Orders of protection may also be issued in instances where the person being “protected” by the order opposes the terms of the order of protection and does not want the defendant being barred from contacting him or her.  People v. Monacelli, 299 A.D.2d 916.  This particular event often occurs in cases involving spouses and families. 

In criminal cases, an order of protection may be part of the court’s order allowing for the defendant release from custody.  CPL Sections 530.12 (family offenses) and CPL 530.13 (non-family offenses).  At times, a court may issue an order of protection on its own, based upon “good cause shown”, when an accusatory instrument (complaint) is filed by the prosecution.  In such an instance, the defendant has a right to contest the issuance of the order of protection in those circumstances where a constitutionally protected right, such as being excluded from the defendant’s residence or being prohibited from contacting the defendant’s family, is restricted.

Also, a court can suspend or revoke a pistol permit and possession of firearms.  A defendant has a right to hearing on the issue of firearms.  It should be noted that a violation of an order of protection due to firearm possession is also a violation of federal criminal law.

By understanding these important aspect of the law as they pertain to orders of protection, the criminal, matrimonial and family law (child custody, child support, family offense) trial attorneys of Riebling, Proto & Sachs, LLP continue to successfully assist their many clients.

If you or someone you know needs the assistant of a criminal, family or matrimonial attorney, please contact Riebling, Proto & Sachs, LLP for a free consultation.  The firms trial attorneys regularly appear in the courts of Westchester, Bronx, Rockland, Putnam, Dutchess and Orange Counties in New York State.

Traffic Tickets and the Best Defense

A common mistake is to look at a traffic ticket in New York and think, all is lost, there can be no possible defense.  Usually there are several defenses to a traffic ticket and as any good criminal defense attorney will tell you it all starts with the traffic ticket itself.

In New York State traffic tickets are written for any crime or violation under the New York State Vehicle and Traffic Law (VTL).  Tickets can be written for moving violations such as speeding, non-moving violations, equipment violations even DWI and DWAI Drugs.  The traffic ticket is the basis for a prosecution and it the starting point for the defense to the charge.

1. The Ticket (Simplified Traffic Information)   

The Ticket is usually a half page document, yellow in color, that a police officer would hand you on the side of the road.  A State Trooper may provide you with a full page ticket (white in color) but usually its the front and the back of the “yellow” ticket on one page.  The front of the ticket outlines the charge while the back has instructions regarding how to respond.  The ticket is also known as a Simplified Traffic Information.

The sufficiency of a simplified traffic information is governed by the criminal procedure law.  Because the traffic ticket is the local court accusatory instrument that provides the least amount of information. the recipient is entitled as a matter of right, upon a timely request, to a supporting deposition.

2. The Supporting Deposition

The supporting deposition is a document that explains the charge in greater detail.  The supporting deposition must be completed by the police officer and must allege all of the elements of the offense.  The statute provides that the allegations may be made upon personal knowledge or upon information and belief providing reasonable cause to believe that the driver committed the offense charged. 

3. Probable Cause

The ticket and supporting deposition together must provide probable cause to believe that the traffic offense in questions was committed.  A supporting deposition that contains boxes checked off by the police officer is sufficient.

4. Time to request a Supporting Deposition from the Police

In some cases a driver will receive a supporting deposition from the police with the traffic ticket, usually issued by the State Police, but in most instances the police officer will only provide a traffic ticket without a supporting deposition.

The request a supporting deposition must be made within 30 days of the court appearance noted on the ticket.  Where the charge is a misdemeanor such as DWI or reckless driving the driver may request a deposition beyond the 30 day period up to 90 days with permission of the court.

5.  The Plea 

Always plea NOT GUILTY to a traffic ticket.  In most cases an experienced criminal defense lawyer can get the charge dismissed or reduced.  A guilty plea is the same as if you went to trial and were found guilty by the judge or jury.  Your best option is to contact one of our experienced criminal defense lawyers to aggressively attack the ticket and its contents even before appearing in Court.

A plea can be entered in court on the date at the bottom of the ticket or by a signed statement on the ticket by mail.  When pleading not guilty by mail, the plea must be sent by registered or certified or first-class mail and within 48 hours of receiving the ticket .  A driver may plea not guilty by mail and request a supporting deposition.  FAILURE to act in a timely matter will cause a loss of the right to the supporting deposition.

6.  Service of the Supporting Deposition

The deposition must be provided to the driver within 30 days of the court’s receipt of the request for it OR 5 days before trial whichever comes first.

7.  Failure to provide a Supporting Deposition

When the court orders the filing of a supporting deposition and the police officer fails to comply in a timely manner the ticket is rendered insufficient on its face and may result in a dismissal. 

The above is one of the basic and best defenses to traffic tickets.  Although there are many defenses this requirment always remains at the core.  It is important to have a traffic ticket attorney since the police officer may try to submit a late supporting deposition or other method to prevent the case from being dismissed.  Our traffic ticket attorneys are prepared to protect your rights and provide you with the best possible criminal defense either in a traffic ticket case, DWI case or other criminal matter.

If you have questions regarding your criminal matter or traffic ticket case call one of our attorneys for a free consultation. 

The best defense is a strong understanding of the criminal procedure law and how each court operates in New York State.

WHEN DO THE POLICE NEED TO “READ YOU YOUR RIGHTS”?

Television and Movies always portray police officers reading Miranda rights to persons under arrest or suspected of a crime. This is very dramatic but not a good portrayal of when and how the police must read a suspect their Miranda Rights.

The Miranda rights are as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?”

The following case is a good example of the use of Miranda rights, when the are to be used and how they can protect someone under criminal investigation. It is important to note that one should never speak with the police and should contact a criminal defense lawyer immediately.

In People v Baggett, 57 AD3d 1093, the Court erred in denying the defendant’s motion to suppress written statements and an audio recording during which he admitted to committing certain crimes. The prosecution did not meet its initial burden of proving that the statements were voluntary. At the time the defendant made the first incriminating statement, a reasonable, innocent person would not have felt free to leave.

Around midnight, the police pulled over the car the defendant was riding in, even though no traffic violations were committed. The police asked the defendant to come with them to the station, and the driver was allowed to leave. The defendant was transported in a marked police car, but was not handcuffed. He waited in an interview room, and when questioning started the door was closed. The police told him the information they had, including an accusation against him by an associate. After he denied stealing anything, the questioning continued.

The police did not administrator Miranda warnings until the defendant finally admitted that he stole the bicycle.

The pre-Miranda questions were accusatory in nature, and intended to elicit an incriminating response. Although the other statements were made after the Miranda warnings, they were tainted by the prior admission and there was no significant break in the questioning.

The statements were suppressed.

At Riebling, Proto & Sachs, LLP our criminal defense trial attorneys want you to understand your rights and how to protect yourself, in a stressful situation, from police misconduct. Our advice to our clients is that it is never advisable to talk to the police without a criminal defense attorney. The police are looking for an accused to make an admission to a crime since it is easier to obtain a conviction with an admission.

In Westchester, Rockland, Orange, Putnam, Dutchess and Bronx Counties our criminal defense attorneys regularly appear in Court and conduct suppression hearings based upon statements made by an accused. Statements are very strong evidence of guilt and the best criminal defense must attack any statements made.

In certain circumstances the police DO NOT have to read you your rights so it is advisable NOT to make any statements at any time to the police. Immediately call our office for a FREE consultation.

As a criminal defense trial attorney my clients are always asking me “when can the police search my car?”  The are several answers to that question but when looking at it from a traffic infraction only point of view the rules are very specific. 

A traffic infraction is any noncriminal ticket. 

A traffic ticket is sometimes called a Uniform Traffic Ticket (UTT) or a Simplified Information.  Those terms are common in Westchester, The Bronx, Orange and Rockland Counties although the paperwork may look different.  UTTs are most commonly issued for speeding, running a stop sign, failure to signal, illegal turn, no headlights and many others.  

An infraction is noncriminal as opposed to a suspended license (VTL 511) or DWI/DWAI (VTL 1192.2/3). Those are misdemeanors or even felonies.  

When a vehicle is stopped for a traffic infraction a police officer is NOT allowed to search the vehicle without some additional grounds for believing that a crime has been committed (People v Marsh, 20 NY2d 98).  The police may order a driver stopped for a traffic infraction out of a vehicle, but without some other probable cause the police can not search the vehicle. 

An example is if a police officer stopped a vehicle because the driver was not wearing his seatbelt (traffic infraction).  The police can check to see if the driver is properly licensed and the vehicle is properly registered/insured, but without more can not search the car.  The problem is that the police are always looking for criminal activity and if contraband such as a gun or drugs are in plain view that is a basis alone to search the entire vehicle.  Even if the officer smells marijuana they may be allowed to search the vehicle (People v Hanson 5 Misc.3d 67).

Most major arrests stem from simple traffic infraction stops.  As a trial and traffic viloation attorney in New York, I want to make sure your protected by understanding your rights.

Andrew Proto