Monthly Archives: March 2013

How to get charges dismissed on speedy trial (CPL §30.30) grounds

Criminal Procedure Law (“CPL”) § 30.30 is the statutory speedy trial rule in New York State.  It sets forth the periods of time in which the People must be ready for trial, after the commencement of a criminal action, generally by the filing of an accusatory instrument.

The statute does not require the People (or the police) to speedily commence a criminal action (i.e. file an accusatory) after the commission of a crime.  Those time limitations are outlined in § 30.10.  See People v. Faulkner, 36 A.D.3d 1009 (3rd Dep’t, 2007).

CPL § 30.30 codifies a defendant’s right to a speedy trial, pursuant to CPL § 30.20 and the Constitutional rights guaranteed under the Sixth and Fourteenth Amendments to the U.S. Constitution, as well as Article I, section Six of the New York State Constitution.  See People v. Singer, 44 N.Y.2d 241 (1978). As such, both statutory and Constitutional claims may be raised.

The initial burden is upon the defendant to make a motion that his Constitutional and/or statutory speedy trial rights have been violated.  People v. Brossoit, 682 N.Y.S.2d 273 (1998). The burden then shifts to the People to respond to the motion, which may include identifying any period(s) of time that may be excluded (“tolled”) from the statutory time frame.

Excludable time: Section 30.30(4) lists certain periods that are excludable, and there is much caselaw regarding these exclusions. One such exclusion often relied on by prosecutors is the delay resulting from a defendant’s absence or unavailability, pursuant to § 30.30(4)(c)(i). In order to prove this exclusion, the People must show for absence that the defendant’s location is unknown and that he is avoiding apprehension or prosecution, or his location cannot be determined by due diligence; and for unavailability that his location is known but his presence for trial cannot be obtained by due diligence.

Thus, even where a defendant may be avoiding the charges by not going to court (i.e. on an outstanding bench warrant), the People still must show some due diligence in trying to secure the defendant’s presence for prosecution.  See People v. Bolden, 81 N.Y.2d 146 (1993). Absent such a showing, the charge(s) should be dismissed, upon a motion pursuant to CPL §170.30(1)(e).

However, be aware that in some limited circumstances the prosecutor could re-file or indict certain charges against the defendant, if it is still within the proper statutory time period to commence an action pursuant to §30.10.

By: Andrew Fiske, Esq.

Buffalo, New York

(716) 852-3600

fiskelaw@gmail.com

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Filed under CPL 30.30, Speedy Trial

Street Encounters with Police: DeBour and Beyond

There are four basic levels of street encounters with police in New York.  People v. DeBour, 40 N.Y.2d 210 (1976).

Level 1 – A Request for Information

The first is known as a “Request for Information,” where an officer may ask you some basic questions regarding who you are, where you live, where you’re going, etc.  In order to do this, the officer must have an objective credible reason for asking; for instance, a crime recently occurred in the vicinity and the officer is looking for clues.

The officer may not detain you or even ask to search you (or your belongings) at this level, and you are free to ignore the questions and even to flee , although doing so will likely arouse suspicion, where there may have been none to begin with.

So, if you know you’re innocent and you feel safe speaking with police, then go ahead and do so.  If not, then politely decline to answer any questions and be on your way.

Level 2 – The Right to Inquire

The next level is the “Common Law Right to Inquire,” where an officer must have a founded suspicion of criminal activity.  This suspicion must be based on your conduct observed by the officer, or from reliable information obtained from a third party.

Again, an officer may not detain or search you at this level, but simply has the right to ask questions.  You, in turn, have the constitutional right not to respond and you should definitely exercise that right and/or ask for a lawyer, especially if the officer’s suspicion of criminal activity was correct.

Level 3 – The Right to Stop and Detain

This level is known as a “Stop and Frisk” or a Terry Stop.  Terry v. Ohio, 392 U.S. 1 (1968).  At this level, an officer has the right to stop and detain you, if there is reasonable suspicion that you committed, are committing, or are about to commit a crime.

The officer may then search you for weapons, or any instrument that could cause injury and take away any such instrument until the completion of questioning.  CPL § 140.50.

This level is basically a pre-cursor to an arrest.  It’s the right of an officer to remove any dangerous weapon from a person prior to the arrest.  However, if an officer stops and searches you on less than reasonable suspicion, then any physical evidence of the search may be suppressed.  People v. Hollman, 79 N.Y.2d 181, 195 (1992).

Level 4 – Arrest

Any arrest without a warrant must be based on reasonable cause (often referred to as probable cause) that a person has committed an offense.

An officer may arrest someone for a petty offense (a violation or traffic infraction) only if he has reasonable cause to believe the person committed the offense in his presence.  CPL § 140.10(1)(a).

An officer may arrest a person for a crime (any misdemeanor or felony), if he has reasonable cause to believe the person committed the crime, whether in his presence or otherwise.  CPL § 140.10(1)(b).

Conclusion

All these technical terms and levels of suspicion may be confusing to non-lawyers, and even some lawyers out there.  However, the basic thing to remember for any type of police encounter is to use your common sense in conjunction with asserting your legal rights.

An officer has no authority to exceed the level of the encounter beyond the appropriate level of the evidence and information that he is relying on.  Since you probably have no idea what information the officer is relying on, the best thing to do is to: remain calm and be polite but immediately decline to answer questions and ask for a lawyer the minute you feel you may be suspected of wrongdoing.

Andrew Fiske, Esq.

Buffalo, New York

Phone: (716) 465-2532

Email: fiskelaw@gmail.com

http://www.fiskelaw.org

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Filed under Arrest, Search & Seizure

How the New York DMV Point System Works

The New York State Department of Motor Vehicles maintains a point system for keeping track of driving infractions.  If you plead guilty or are convicted of an infraction, the court will send that information to the DMV, which will assess points to your driving record.  The points stay on your record for 18 months, running from the date of the infraction (not the date of your conviction).

Speeding 1-10 mph over limit              3 POINTS

Speeding 11-20 mph over limit           4 POINTS

Speeding 21-30 mph over limit           6 POINTS

Speeding 31-40 mph over limit           8 POINTS

Speeding 41+ mph over limit              11 POINTS

If you accumulate 11 or more points within any 18 month period, or, if you are convicted of 3 speeding violations within 18 months, your license will automatically be suspended by the DMV.

Additionally, the DMV will charge you an Assessment Fee of $300 (separate from the court’s fines and surcharges) once you hit 6 points on your driving record, and an additional fee of $75 for each and every point over 6.

Therefore, a single speeding ticket of say, 76 mph in a 55-mph zone, could easily cost you around $600 or more if convicted ($215 court fine, $85 mandatory state surcharge, and $300 DMV Assessment Fee).  And, this does not take into account the likely increase in your auto insurance rates, which could amount to hundreds of dollars more per year.

When you add it all up, hiring a reasonably priced attorney for your speeding ticket will almost always save you money in the long run.  Also, in many cases, you won’t  need to go to court yourself if you retain a lawyer.

Speeding tickets generate significant revenue for the courts and state through the hefty fines and mandatory surcharges that are imposed with a conviction.  Don’t hand your money over to the very entity that pulled you over and ticketed you (state or local police).  Save time, money, and the hassle of the whole process by hiring a skilled professional to fight them and your ticket for you.

Call (716) 245-4944 for a free consultation on any speeding or traffic ticket matter.

By: Andrew Fiske, Esq.

Buffalo, New York

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Filed under Speeding, Traffic