Question: Fraud upon the court (NYS)

[Zigner]

You mean the constructive possession thing? I think so. Here are my notes:

See People v. Branigan 67 NYD3 860, 862 (1986) Failure to produce driver's license on demand) and, People V. Bohn (91 Misc dd 131 [Appointment Term, 2d Cept 1970) "refusal [to produce the license upon demand] is not a violation. . ." "refusal to comply with a request for documentation is not an independently unlawful act. . . " and falls under NY VTL 507(2) (presumptive evidence of nonpossession)

Remedied by "constructive possession" (legal-dictionary.thefreedictionary.com),

United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]) retains possession despite lack of physical contact.

VTL 1229c-7 Neither requires active possession nor prohibits constructive possession.

Is there precedent?: 2009 and 2011. Same issues, different courts, same defense - dismissed (yes, there is precedent)

I'm sorry, I'm guessing I miss anything in your information above that shows that your theory of "constructive possession" would apply in your situation.

 

[MsSue]

Yes we do but I suspect you would be offended if I told you, honestly, why you lost so I will refrain from doing so.

Try me. Why do you think I lost?


To the other person who responded above, the law does not state that I must have it with me at all times. (Form C-58 did contain that statement,but that has been pulled and its provisions has no binding basis on the judiciary). The applicable law, as I understand it (and I am not a lawyer) is NY VTL 1229c-7, and there is absolutely no language therein to require one to "carry it with you at all times." nor is there any language whatsoever to preclude an affirmative defense by producing it for the court's inspection. And there is plenty of NY precedent that accepts affirmative defense based thereon.

 

[Zigner]

Bottom line: Your MD letter was issued AFTER you received the citation. The cite was proper and the guilty verdict was proper.

 

[MsSue]

I'm sorry, I'm guessing I miss anything in your information above that shows that your theory of "constructive possession" would apply in your situation.

It applies to me with a medical exemption just as it would apply to someone else who could not produce a document (such as a license, registration, insurance card) upon demand of law enforcement. The case law cited states that it is not a crime to fail to produce. Instead, it is relegated to that legal limbo known as "presumptive evidence of guilt." NY 507(2). There is a remedy for presumptive guilt, which is proving that you do indeed have such document that you, for whatever reason, could not produce for law enforcement upon demand. The remedy is producing it for the court. Which I did. The day following the infraction. I proved "constructive possession" by giving a copy of the document to the court that I could not find when the officer asked me for it. The document was valid and issued according to law.

I know that is proper and legal because it's happened twice before. I got stopped, couldn't find the paper, so went home, found it (one time it was in another wallet I had at home, and the other time it had been in my glove compartment all the while, I was just too nervous to find it), copied it for the court, wrote "not guilty" on the ticket, and received a dismissal by return mail. That was the end of that.

To the gentleman who wrote that he felt the physician might have illegally issued my exemption, please read NY VTL 1229c-7. I do believe, as does the physician, that this is an entirely legal exemption (remember, when he wrote it, he was also complying with the now-defunct C-58). Section 7 does not require the ADA to certify the handicap; a physician's certification is statutorily sufficient.

 

[Zigner]

I'm smacking my forehead. OP thinks she's right - nothing will convince her otherwise.

Good luck. Good day.

 

[MsSue]

Bottom line: Your MD letter was issued AFTER you received the citation. The cite was proper and the guilty verdict was proper.

See, this is what happens when you don't have all the info.

The certification

1) by statute, the letter need not be dated at all. The date is immaterial and irrelevant. All it has to say is whether the physician certified the handicap and the nature of the handicap and why it prevents use of the safety device. This is the ONLY information that the court need consider.

2) Duh, of course it was issued AFTER I received the citation. I couldn't find it, it was lost. I simply got a replacement, just as one would legally do if one could not find her/his license or registration. . . you simply get a replacement, bearing the same information that the old one did, and that is just as valid in the eyes of the law as the original. But it was DATED the DAY OF the infraction, not the DAY AFTER, and by content was clearly in effect ever since 2009. The date simply diversional, irrelevant, immaterial, and useless in the court -- well, in every court but THIS one.

3. Therefore, the Prosecutor's claims of it's being "misdated" to the "day after the infraction" are totally unnecessary and not truthful, and a verdict based any kind of "date" flies in the face of applicable law.

God, I feel like I am back in that stupid court.

 

[MsSue]

I'm smacking my forehead. OP thinks she's right - nothing will convince her otherwise.

Good luck. Good day.

S'funny, I just did that myself after I read your other notes.

 

[MsSue]

I'm smacking my forehead. OP thinks she's right - nothing will convince her otherwise.

Good luck. Good day.

But you're right. I should've gone with my instincts and not tried this case on a forum that doesn't offer legal opinions. I thought it did, my bad.

So, thank you all for your insight, some good, some not so good, and thank you for reminding me von non potestis figere stultus, I always have a hard time remembering that until it starts making me feel ill.

 

[tranquility]

It applies to me with a medical exemption just as it would apply to someone else who could not produce a document (such as a license, registration, insurance card) upon demand of law enforcement. The case law cited states that it is not a crime to fail to produce. Instead, it is relegated to that legal limbo known as "presumptive evidence of guilt." NY 507(2). There is a remedy for presumptive guilt, which is proving that you do indeed have such document that you, for whatever reason, could not produce for law enforcement upon demand. The remedy is producing it for the court. Which I did. The day following the infraction. I proved "constructive possession" by giving a copy of the document to the court that I could not find when the officer asked me for it. The document was valid and issued according to law.

I know that is proper and legal because it's happened twice before. I got stopped, couldn't find the paper, so went home, found it (one time it was in another wallet I had at home, and the other time it had been in my glove compartment all the while, I was just too nervous to find it), copied it for the court, wrote "not guilty" on the ticket, and received a dismissal by return mail. That was the end of that.

To the gentleman who wrote that he felt the physician might have illegally issued my exemption, please read NY VTL 1229c-7. I do believe, as does the physician, that this is an entirely legal exemption (remember, when he wrote it, he was also complying with the now-defunct C-58). Section 7 does not require the ADA to certify the handicap; a physician's certification is statutorily sufficient.

How were you in "constructive possession" of something not in existence? I think we can compare and contrast with any cases you want to bring up.

It is super what you and your physician believe. Perhaps you can get the courts to agree. The proper way is to appeal. Other traffic courts who have seen it your way in the past are not considered precedent. My point about the ADA is that it is not a money issue as you claimed, but completely different. Thus eliminating the "it's too expensive" argument. As to what the statute requires, if stature or girth is not a "physically disabling condition" the certification was not correct. Or, in your parlance, a lie and a fraud upon the court.

 

[You Are Guilty]

The certification

1) by statute, the letter need not be dated at all. The date is immaterial and irrelevant. All it has to say is whether the physician certified the handicap and the nature of the handicap and why it prevents use of the safety device. This is the ONLY information that the court need consider.

Incorrect. Just as a blatant example, let's say you are ticketed on Jan 1, with a court date of Jan 10. As of Jan 1, you are healthy and do not have an exemption, valid or otherwise. Jan 2 you are hit by falling space detritus and disabled as a result. Jan 3 you get doctor's letter, which you submit on your court date.

Still think that dates don't matter?

2) Duh, of course it was issued AFTER I received the citation. I couldn't find it, it was lost. I simply got a replacement, just as one would legally do if one could not find her/his license or registration. . . you simply get a replacement, bearing the same information that the old one did, and that is just as valid in the eyes of the law as the original. But it was DATED the DAY OF the infraction, not the DAY AFTER, and by content was clearly in effect ever since 2009. The date simply diversional, irrelevant, immaterial, and useless in the court -- well, in every court but THIS one.

Even if the letter was dated the day after the ticket, did it clearly state that the disability existed at the time the ticket was issued, as that is the operative time period? Had you not screwed up the procedure so badly, this would be your saving grace.

3. Therefore, the Prosecutor's claims of it's being "misdated" to the "day after the infraction" are totally unnecessary and not truthful, and a verdict based any kind of "date" flies in the face of applicable law.

Given that there is not one single published case concerning 1229c(7) (other than whether the defense can offer the failure to wear a seatbelt as a way to lower damages), there is no "applicable law", much less any that flies in the face of it. Not that this would have been a bar to prevailing initially - that part seems to have been the result of unpreparedness.

God, I feel like I am back in that stupid court.

Imagine how the court feels.

 

[tranquility]

Incorrect. Just as a blatant example, let's say you are ticketed on Jan 1, with a court date of Jan 10. As of Jan 1, you are healthy and do not have an exemption, valid or otherwise. Jan 2 you are hit by falling space detritus and disabled as a result. Jan 3 you get doctor's letter, which you submit on your court date.

Still think that dates don't matter?

Even if the letter was dated the day after the ticket, did it clearly state that the disability existed at the time the ticket was issued, as that is the operative time period? Had you not screwed up the procedure so badly, this would be your saving grace.

Given that there is not one single published case concerning 1229c(7) (other than whether the defense can offer the failure to wear a seatbelt as a way to lower damages), there is no "applicable law", much less any that flies in the face of it. Not that this would have been a bar to prevailing initially - that part seems to have been the result of unpreparedness.

Imagine how the court feels.

But, one of those is quite interesting, isn't it?

EMESE M. VARGA, vs. RENT-A-CENTER EAST, INC.,
3:10-cv-00559-MAD-DEP [http://www.gpo.gov/fdsys/pkg/USCOURTS-nynd-3_10-cv-00559/pdf/USCOURTS-nynd-3_10-cv-00559-0.pdf]

Which says, in part (emphasis mine):

Law § 1229-c(7). Specifically, this exclusion provides that New York's general safety belt
requirement "shall not apply to a passenger or operator with a physically disabling condition
whose physical disability would prevent appropriate restraint in such safety seat or safety belt
provided, however, such condition is duly certified by a physician who shall state the nature of
the handicap, as well as the reason such restraint is inappropriate." Id.
2
In support of her motion, Plaintiff contends that she had a note from her doctor which
satisfied the statute's requirements, but that this note was in the glove compartment of her vehicle
which was totaled in the accident. Therefore, atPlaintiff's request, Plaintiff's treating physician
drafted a document entitled "Certification," which provides as follows: "Ms. Varga has a
physically disabling condition, that is post herpetic neuralgia. This condition existed on 4/29/10.
The use of a safety belt restraint is inappropriate for Ms. Varga due to the pain that would result
from such use as a result of Ms. Varga's post herpetic neuralgia condition." See Dkt. No. 33-7.
This "Certification," however, was not sworn under penalty of perjury, notarized, or even dated.
See 28 U.S.C. § 1746; Link Treasure Ltd. v. Baby Trend, Inc., 809 F. Supp. 2d 1191, 1195 (C.D.
Cal. 2011). Further, Dr. Butt failed to state how he has knowledge of Plaintiff's alleged disabling
condition or whether he had "duly certified" her condition at the time of the accident. See Link
Treasure Ltd., 809 F. Supp. 2d at 1195.
In an earlier letter from Dr. Butt to Plaintiff's attorney, Dr. Butt informed counsel that
Plaintiff was issued a note to exempt her from wearing a safety belt "some time ago in 2009," but
states that, "nfortunately, the copies are not available." See Dkt. No. 33-6 at 4. This letter,
again, is not sworn under penalty of perjury or notarized, and does not state whether Plaintiff's
written exemption was permanent or subject to renewal.
As Defendant correctly argues, there is no evidence in the record clearly establishing that
Plaintiff had a duly certified exemption to New York's safety belt law at the time of the accident.
As such, questions of fact preclude the Court from granting Plaintiff's motion to strike. See N.Y.
Pattern Jury Instr. § 2:87, at 498 (3d ed. 2012) (noting in the Comment that "f there is an issue
of fact as to whether plaintiff's disability prevents the use of a seat belt, that issue should be
submitted to the jury"). Moreover, the Court fails to see how Plaintiff would be prejudiced by
Defendant presenting evidence in support of this affirmative defense. At trial, it will be left to the
jury to decide whether Plaintiff had a duly certified exemption from New York's safety belt law at
the time of the accident.

The jury (aka fact finder) determines if a person has a "duly certified exemption".

 

[You Are Guilty]

I pulled my (old) hard copy of the PJI out to see what it had to say, and 2:87 is the comparative negligence section for a passenger not using a seat belt in car accident. The only "probative" comment is:

If there is an issue of fact as to whether plaintiff's disability prevents the use of a seat belt, that issue should be submitted to the jury [citing 1229-c(7)]

(Skimming the remainder of this section, and the few others dealing with the VTL and/or seat belts, I don't see any references to sub(7) anywhere).

So based on that, I guess we can add one more log to the "things screwed up at trial" fire.


PS: Dr. Butt? Really?

 

[tranquility]

PS: Dr. Butt? Really?

I guess it would depend on where the dermatomic area of the outbreak was, wouldn't it?

 

[ecmst12]

One would think that after the 2 previous occasions where you were ticketed for this, that you would make double-triple sure that you have copies of your dr's note both on your person and in your vehicle at all times. That would be logical, anyway.

 

[NotGuilty Sue]

Thank you for all the information I obtained from this thread. Some proved helpful, some did not, but I considered it all, after which it became clear what I should do.

There are really only two places to re-try this case, but this forum is not one of them. One is in appeals court, and the other is the court of public opinion. I have addressed both, the latter here:

glimpsesofthegood.wordpress.com

Thank you for the case citations, which were in the later postings. While I found them interesting, they did not prove useful, because they all referred to civil law and personal injury. As I understand things, PI attorneys don't really care *why* a litigant was not wearing a seat belt. All they care about is whether nonuse can be considered a mitigating factor in determining damages. Whether the nonuse was legal or not simply does not matter, which is why none of the cases even mention NY VTL 1229c-7.

The case put before this forum was not a civil matter; it was a traffic infraction (criminal law) whose sole issue was whether a violation of subsection 3a occurred, and that must be adjudicated on the basis of VTL 1229c-7, supported by case law that deals with that (or closely related) issues.