4 year old tickets & trial?

[mike071581]

What is the name of your state? NY, Nassau County

I got 2 tickets in May of 2001 from a Nassau County cop. I mailed them in within 48 hours via certified mail and 2 years later I got a notice for a pre-trial conference. I went and pleaded not guilty in person and they told me I would recieve a notice of trial date in the mail. Two years later I get a trial date for May 11, 2005. Is this legal? Don't I have the right to a fair and speedy trial? I never postponed a date or called to push meetings back and I did check the box on the ticket before I mailed it in asking for a supporting deposition form the officer, which I never recieved.

This doesn't matter but I don't even own the car or live at the same place anymore...and the post office didn't foward me the trial notice, I just found out today that trial is Wednesday and I'll be out of town.

Another question, don't tickets stay on your record for 36 months and then come off? If so, these tickets are from 48 months ago so even if I'm convicted and pay the fine they shouldn't go on my record, I shouldn't get points and they won't get reported to the insurance company. Right?

Any help is greatly appreciated.

Mike

 

[Peetie]

From what you've said, if true, you have solid grounds for dismissal of the ticket. However, I'm used to traffic courts so my advice is based on that. In Nassau County, your tickets go to a DMV hearing rather than a town or village court, so the rules are different. However, I think that you can still get it dismissed.

Make a motion (request) to the court for dismissal for failure to prosecute and denial of speedy trial. The trial court may very well dismiss for failure to prosecute. They will never dismiss for speedy trial denial because CPLR rules do not apply to the hearings. The hearings are administrative procedures and they make up their own rules. However, if you cannot get it dismissed at that level, your appeal would go to a court of law so you would be in a better forum to win.

If they don't dismiss at the trial level, it will be dismissed on appeal. If you did send your plea in within 48 hours and if you indeed showed up for a pre-trial conference, you will, without a doubt, win on appeal in a court of law for failure to prosecute.

Again, I'm not sure if the administrative rules allow for this, but since you said you mailed your plea in within 48 hours, I have to ask: did request a supporting deposition? I know that courts have ruled that limited discovery (radar equipment testing documentation) are allowable in the administrative hearings so a supporting deposition may also be a requirement, if requested.

If you are entitled to one, did you request it? If you did request it, did you receive it within 30 days? If you answered "yes" to question #1 and "no" to question #2, that's another solid ground for dismissal.

 

[mike071581]

Thanks so much for your reply Peetie.

Do you have any idea how I would go about making a motion to dismiss. What does it include and is it something I need to write and file, or just ask for.

I checked the box on the ticket before I mailed it for a supporting deposition but never recieved one. I also have a copy of the ticket before I mailed it as well as the certified mail receipt. At the pre-trial conference I didn't ask for a supporting deposition since I had already cheked the box. The tickets were for going through stop sign and following to close so I'm not sure what they would give me. I would think the officers deposition at a minimum.

Thanks again,
Mike

 

[qcxlvr1]

Most of the advice Peetie gave was incorrect. I assume your tickets were returned to the Nassau County Traffic & Parking Violations Agency at 16 Cooper Street West in Hempstead? This is NOT a DMV court, it is a local court. FYI--motions, rules of evidence, CPL/CPLR, etc, DO NOT apply in New York State DMV courts, the burdens are different and they are administrative hearings.

To put a ticket into motion status at Nassau Traffic court, you need to serve papers on them. Unfortunately, I see a problem with moving to dismiss based on not receiving the supporting dep. CPL 255.20 requires pre-trial motions be served/filed within 45 days of arraignment. You have already been arraigned upon the information because you plead within 48 hours (VTL 1806).

I'm pretty familiar with this court. If you want to post an e-mail, I see if I can help you further on the speedy trial issue.

 

[mike071581]

Sure. My e-mail is [email protected]

 

[Peetie]

qc,

Perhaps you might learn how to read before spouting an opinion, heh?

I said the DMV courts were administrative hearings, to which you said I was wrong, and you then repeated the very same thing as a correction. I said CPL and CPLR rules do not apply to administrative hearings, to which you said I was wrong, and then repeated the very same thing as a correction.

Mike, if your ticket is returned in a court, then everything I said about moving for failure to prosecute and denial of speedy trial is correct and applies. I've done it. No one will even bring up CPL 255.20.

You requested the supporting deposition. It must be served upon you within 30 days of your request, or 5 days prior to trial, whichever comes first. THAT IS WHAT THE STATUTE REQUIRES. If that doesn't happen, it is an automatic dismissal. I don't know who qcxlvr1 is, but if he/she sees a problem with dismissal for not receiving the supporting deposition, then he/she doesn't know what he/she is talking about.

Go to Loislaw.com and sign up for a free trial account. They will email you a password, usually within 10 minutes. Go back, sign in and chose NY jurisdictions and search for case law, using "supporting deposition" as the search term. You'll find case law where appeal courts dismiss tickets for untimely service of, or failure to serve, the supporting deposition.

 

[qcxlvr1]

Peetie,

Based on your responses, you seem to really troll a lot and represent yourself as some sort of an authority who offers better advice than anyone else. Tell me, when were you admitted to practice in New York State -OR- where did you receive your NYS Basic Municipal Police Certification?

In your first response you stated, "In Nassau County, your tickets go to a DMV hearing rather than a town or village court." My interpretation of this statement means that you are referring to a NYS DMV court. Nassau County does not have this and that is what I was trying to state.

As for 255.20, maybe you're right and maybe you're wrong. They have to catch it and it depends on the judge and the traffic prosecutor. Some hearing officers at NC TVA will let it slide and others will deny the motion. I have seen it done, believe me. So don't come here and state, "No one will even bring up CPL 255.20." FYI, there is at least one Article 78 proceeding from Nassau Supreme Court (you do an Article 78 to appeal a decision from a hearing officer at NC TVA) in which the motion to dismiss was denied because of 255.20, and it was therefore untimely. By the way, that particular motion and appeal was written by an attorney who was the actual defendant on the simplified traffic information.

So, sometimes 255.20 will come into play, and other times it will not. But, I do think you have nothing to loose by making the motion.

 

[qcxlvr1]

Peetie,

By the way, take a look at this decision by a Nassau County judge so you understand that you can't just make a motion to dismiss whenever you feel like it.

http://decisions.courts.state.ny.us/10jd/nassau/decisions/index/index_new/phelan/2003jun/019174-02.pdf

 

[lwpat]

The problem with that decision is that you would have to file a motion to dismiss prior to the requirement that it be furnished no later than five days prior to trial. It looks like a timely filed, within forty-five days, motion could also be dismissed as untimely becasue it was filed before the time limit for furnishing the deposition was up.

This is becoming moot since most departments are now starting to issue the deposition with the ticket.

But, I do think you have nothing to loose by making the motion.

I agree. The fact that you did not receive the deposition deprived you of the information needed to prepare a defense. Once the trial starts the judge should dismiss.

 

[qcxlvr1]

This is how I understand the process of a motion to dismiss a simplified traffic information in this particular court and other similar ones.

1.) Simplified traffic information issued.
2.) Plea of not guilty is indicated on rear of ticket with request for supporting deposition. If you mail this within 48 hours of receiving the ticket, you have been arraigned per VTL 1806.
3.) Now the clock starts for the prosecution's 30 days to produce the deposition. The 45 day pre-trial motion period also starts now.
4.) Assuming you do not get that deposition after 30 days of the court getting your request, you now must hit them with papers to dismiss and put the matter into motion status. Because the 45 day window is running concurrently with the 30 day requirement above, you have 15 days now.
5.) Serve motion in person, 3 copies--2 to the court, 1 for your records, all stamped, or have them served by certified mail return receipt requested.
6.) It will be dismissed accordingly without predjudice (a long form can be brought but it'll never happen in Nassau County traffic court).

This is the way you do it if you plead within 48 hours. If you appear in person or mail it after 48 hours, it is slightly different.

Of course, a motion is up to a judge and some judges will dismiss it no matter when you make the motion and others will deny it. It just depends on the judge.