New York VTL charges need to have some sort of factual basis. Officers who issue traffic tickets, whether it be a Suffolk County Traffic Ticket or a New York City Traffic Ticket, need to state the source of the observation which provides reasonable cause for the stop and the issuance of the Traffic Ticket. Indeed, this case holds that “where the charge is based on the Officer’s information and belief, rather than based on his personal observations, the supporting deposition must contain a statement of the source of that information and belief if it is to be sufficient on its face.” Pp. 3-4 (citations omitted). While police officers may issue such tickets often, hiring a good criminal defense attorney to challenge these traffic tickets makes all the difference:

Section 100.25(2) of the CPL entitles a defendant charged with a traffic offense to receive a supporting deposition of the police officer containing allegations of fact providing reasonable cause to believe that the defendant committed the offense charged:

“A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged.” CPL §100.25(2).

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Under the New York State Constitution, a defendant’s right to counsel is Indelible. Once attached, police questioning must cease. Although overlooked by most people (and, usually, criminal defendants), once you demand an attorney within New York State, the police must stop questioning you without the presence of counsel. This is important whether confronted with a Driving While Intoxicated Charge or Homicide charge because the police can and will use anything you say against you. When confronted by the police, DEMAND AN ATTORNEY – Call 631-450-2515.

Here, The Appellate Division, Second Department, examined one such case where the Defendant started to talk but demanded an attorney while being questioned by the police. The Defendant was accused of, inter alia, sexual abuse and rape. The complainant was his ex-girlfriend. Before being charged, the Defendant was brought into the police station for questioning. The Court noted that he was not free to leave and he was Mirandized: he understood he had the right to counsel but, nonetheless, continued on and cooperated with the police questioning. He was told of the allegations against him and he demanded counsel. The Court noted the following:

approximately 45 minutes into the interview, in response to a question by the investigator, the defendant stated, “I have nothing to defend myself besides my…attorney I’m going to have to call now if [the complainant is] really pursuing charges.” The investigator responded by stating that he would go check on how the complainant was doing and left the defendant alone in the room. The investigator returned to the room after approximately 10 minutes…Thereafter, approximately 15 minutes later, when the defendant and the investigator were discussing the condition of the complainant’s pajamas, the defendant indicated that the pajamas were in perfect condition. When the investigator asked, “What if they’re ripped?,” the defendant responded that, if so, then the complainant did it. He also said, “She’s trying to burn me [and] I need to see private counsel or something. I need an attorney, because this is ridiculous.” The interview was not stopped at that point, but, shortly thereafter, the investigator pointed out to the defendant that he had brought up “the attorney thing” and inquired as to the status of that request. The defendant replied, “I have to get [an attorney]. I have to call my Georgia guy and get one that’s New York barred up here, I guess.” The interview was not stopped at that point and continued, uninterrupted, until the defendant requested a bathroom break, which he was given…

Pp. 2 (external quotation marks omitted).

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In Chemung County, New York, ” Defendant was charged by indictment with assault in the second degree stemming from an incident in July 2012 where he allegedly ran over his girlfriend, Deborah Meyer, with a pickup truck.” Pp. 1.

At issue was the “County Court [ruling] that the witness could not speculate as to whom defendant had directed his comment, and the witness’s testimony in that regard was stricken from the record.” Pp. 2. Nonetheless, the People twice made improper references to the stricken testimony and twice those references went without objection from defense counsel or curative instructions from the court.” Id.

Rule: “To prevail on his ineffective assistance of counsel claim on the basis of [a] single failure to object, defendant must show both that the objection omitted by trial counsel is a winning argument…and that the objection was one that no reasonable defense lawyer, in the context of the trial, could have thought to be ‘not worth raising.'” People v. Brown, 17 NY3d 742, 743-744 (2011), quoting People v. Turner, 5 NY3d 476, 481 (2005)). “In our view, defendant has met his burden of demonstrating a lack of strategic or other legitimate reason for his defense lawyer’s failure to object.” Pp. 2 (citing People v. Rivera, 71 NY2d 705, 709 (1988)).

Under the circumstances, the Court found “that no reasonable defense lawyer could have thought that such an objection would not have been worth making,” and , therefore, this constituted ineffective assistance of counsel. Pp. 3  Judgment is reversed and the matter is remitted for a new trial.

The case is People v. Ramsey, 106652, NYLJ 1202744267116, at 1 (App. Div., 3rd, Decided December 3, 2015)

Instead of legislation, new regulations control problem driver designations and permanent license revocation in New York. The New York State Department of Motor Vehicles (DMV) has the ability to revoke a license and now utilizes a 25-year look back period, in some instances, to do so. Here, the “Petitioner was convicted in 2010 of driving while intoxicated, her third alcohol-related driving offense within a 10-year period. As a result of her conviction, her driver’s license was revoked for a minimum period of one year…” It is important to note that many New York drivers represented by a criminal defense attorney and, often ordinary people who handle their own traffic tickets, take plea deals prior to the promulgation of these regulations. The Third Department makes clear that this was the case with the Petitioner:

When petitioner applied fora new license in June 2012, respondent Department of Motor Vehicles…held the application in abeyance until later that year when emergency regulations were adopted concerning the review of applications for relicensing by persons with multiple alcohol- or drug-related driving offenses (see 15 NYCRR part 136). Once the new regulations were in place, DMV relied upon them to deny petitioner’s application because she was a person with “three or four alcohol- or drug-related driving convictions or incidents in any combination . . . and . . . one or more serious driving offenses within the 25[-]year look[-] back period” (15 NYCRR 136.5 [b] [*2][2])Specifically, during the look-back period, petitioner committed the “serious driving offense” of having been twice convicted of speeding violations “for which five or more points [were] assessed on [her] driving record” (15 NYCRR 136.5 [a] [2] [iii]).

(external quotation marks and footnote omitted) (internal citations and quotations preserved). While the Third Department has dealt with several challenges to the regulations (15 NYCRR 136) itself, this case deals with whether the speeding violations are considered a serious driving offense. Indeed, “[P]etitioner’s contention that 15 NYCRR 136.5 (a) (2) (iii) arbitrarily designates a ‘conviction of two or more violations for which five or more points are assessed on a violator’s driving record’ to be a serious driving offense.” more

The First Department reviewed a conviction and did not find harmless error to uphold the conviction. Here, the “Defendant’s right of confrontation was violated by testimonial hearsay evidence that went beyond the permissible scope of explanatory background material….Defendant was further deprived of his right to a fair trial by other portions of the prosecutor’s summation…The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial…[therefore,] [t[he totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict.”  People v DeJesus, 2015 NY Slip Op 08959 (1st Dep’t. Dec. 8, 2015). What happened here?

Among the problems stated by the First Department in reaching their decision, I focus on one in particular:

During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days (see People v Aponte, 2 NY3d 304, 308-309 [2004] [trial court improperly stated, among other things, that it was “nowhere near” the point when it would find a hung jury, where deliberation had lasted two days]). The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system (see People v Huarotte, 134 AD2d 166, 170-171 [1st Dept 1987]; see also Aponte, 2 NY3d at 308 [finding reversible error where, among other things,Allen charge “suggested that the jurors were failing in their duty”]). Pp. 1-2 (external quotation marks omitted and internal citations and quotations preserved).

In light of other criminal cases coming out of the Bronx (e.g. Kalief Browder), it is important to emphasize the neutral role the judge is to play while making sure the rights of the defendant are not violated by the prosecutor. In this case, the First Department concluded that “there is a significant probability that defendant would have been acquitted if not for the violation of his right of confrontation, the prosecutor’s improper statements in summation, and the court’s improper statements during deliberation.” Pp. 2 (citing People v Crimmins, 36 NY2d 230, 242 (1975)). The case is People v DeJesus, 2015 NY Slip Op 08959, (1st Dep’t. Dec. 8, 2015). A new trial was ordered. The case is People v DeJesus, 2015 NY Slip Op 08959.