This appeal comes from the Nassau County Traffic and Parking Violations Agency (“TPVA”). The Defendant was charged with using a mobile telephone while operating a motor vehicle (VTL Section 1225-c(2)(a)). A non jury trial was held at the Nassau County TPVA and the police officer testified that the defendant was holding her cellular phone in her hand, next to her face, and driving the car. At this point, it is incumbent upon the Defendant to contest these assertions by the police officer. The Court here notes that the defendant “had exculpatory evidence to present” but the Court did not allow her to present her case. A verdict was rendered and the defendant, who appeared to be confused, continued to protest that she had exculpatory evidence, evidence that tends to prove her innocence, that she wanted to present to the Court. The defendant was convicted. This appeal follows as the defendant contests that she was deprived of her fundamental constitutional right to a fair trial – again, this is due to a VTL violation:
Vehicle and Traffic Law §1225-c (2) (a) provides that “no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion….” For purposes of the statute, “using” a mobile telephone means holding a mobile telephone to, or in the immediate proximity of, the user’s ear (Vehicle and Traffic Law §1225-c  [c] [i]), and “engage in a call” means “talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone” (Vehicle and Traffic Law §1225-c  [f]). Moreover, “[a]n operator of any motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section…. [and] [t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call” (Vehicle and Traffic Law §1225-c  [b]).
Pp. 2-3 (external quotation marks omitted and internal citations preserved). The Appellate Term states that the People have the burden of establishing the Defendant utilized the cellular phone while driving. Once the people’s burden is met, here the officer testifying as to the cellular phone use while the vehicle was in motion, the defendant should have had the opportunity to rebut the presumption made by the people. more
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).