by "notsomethingstructural" (notsomethingstructural)
Published 05/16/2017 at 20:05
by "notsomethingstructural" (notsomethingstructural)
Published 05/16/2017 at 20:05
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STARS: 0
Heading to court tomorrow to defend myself against a cell phone ticket. It’s in one of New York City’s dreaded TVB courts. Er, tribunals. Whatever. Anyone with any tips?
I have a plan for my defense in place, basically: 1) make sure the state produces the witness, 2) argue for dismissal or adjournment due to a clerical issue (was never informed of my rights further to NY law), 3) barring that, deep line of questioning to show either they didn’t witness it sufficiently, don’t have ample recall, or have inconsistencies in their testimony, 4) MAKE HIM IDENTIFY THE PHONE, 5) don’t take the stand, 6) close with that the state hasn’t met their burden of proof (which, by the way, is “a preponderance of evidence” in these tribunals).
Any lawyers out there?
"Rico" (ricorich)
05/16/2017 at 20:19, STARS: 0
What’s your record like?
"dogisbadob" (dogisbadob)
05/16/2017 at 20:21, STARS: 0
well, you can show up and request a deferral to get an attorney.
"notsomethingstructural" (notsomethingstructural)
05/16/2017 at 20:24, STARS: 1
It SHOULD be spotless they had a clerical error on this same ticket where my license was suspended but it got tossed and expunged. Basically they received my response a week prior to mailing my suspension notice so someone in Albany fucked up.
"notsomethingstructural" (notsomethingstructural)
05/16/2017 at 20:29, STARS: 1
Yeah, that’s what I’m considering in step 2. “I wasn’t told I could get a lawyer so I can’t proceed with a trial at this point.” I called two attorneys though and their rates were $600-700 for a cell phone defense which is in no way worth it for a $200 ticket with a clean record.
I also don’t want to just scoop up a guy in the courthouse because I don’t have much faith they would actually make a compelling case. There’s no plea deals here, so they have to win it to make it a worthwhile expense. I read the law, my rights and defenses are pretty minimal. Basically the ticket is valid on its face and the standard of proof is “a preponderance of evidence” and not “beyond a reasonable doubt.”
"Steve in Manhattan" (blogenfreude01)
05/16/2017 at 20:37, STARS: 0
I am a lawyer licensed in NY. I have no idea what this ticket is - someone saw you with a cell phone in use while driving? The only thing I might caution against is a “deep line of questioning” - courts of this sort want the case sorted in a few minutes, usually. Whittle your questions/argument down, as judges like to hear just the basics.
And good luck.
"Urambo Tauro" (urambotauro)
05/16/2017 at 20:46, STARS: 0
Can you get phone records? Proving that there were no active calls or texts during the time period in question should go a long way in helping your case, I’d imagine.
"Rico" (ricorich)
05/16/2017 at 20:46, STARS: 0
If your record is clean the judge may dismiss it or reduce it to a no point fine. Even if you weren’t on your phone reducing it to a no point fine should be your goal. If you get that verdict just take it, thank the judge and walk away.
I think you should tone down the legalese at first.The judge might get annoyed by it especially if you aren’t a lawyer. Pull out the legalese if things don’t seem to be going your way.
As you were already planning: Go presentable/professional. It never ceases to amaze me the kinds of ways people go dressed to see the judge.
Good luck! I’ve beat a BS red light ticket last year without even talking, judge just said “Dismissed!” the second the cop stopped talking. Never seen a cop get so angry and storm out of court.
"notsomethingstructural" (notsomethingstructural)
05/16/2017 at 20:54, STARS: 0
Yes - the allegation / witness statement / charged offense from NYPD is use of a cell phone while driving. When you’re ticketed in the boroughs, it’s not handled by a typical traffic court, it’s handled by an administrative tribunal. Weird stuff. Traffic Violations Bureau - where ordinary rules of evidence, hearsay, discovery, and burden of proof do not apply.
That’s good advice on the questioning, I’ll try to keep it moving.
"notsomethingstructural" (notsomethingstructural)
05/16/2017 at 20:58, STARS: 0
Yeah unfortunately Verizon fucked that up for me real bad. They said I could access them and if not they could give me a printable readout. Today they tell me that was incorrect and they’re overnighting the statement from that date. Customer service can’t even view it so I have no idea what’s in there.
"notsomethingstructural" (notsomethingstructural)
05/16/2017 at 21:04, STARS: 1
The thing that sucks about the TVB is there are exactly two outcomes: guilty or not guilty of the charged offense. No plea deals and no reductions. Guilty or not.
Good advice on the legalese, I’ll try to keep it in mind. But from what I hear, there’s no “nice guy” reductions or dismissals here. Especially because the standard of proof is so low you’re basically guilty until proven innocent. So it’s basically guns blazing or stay home. I’ll see hopefully I’m not first on the docket.
And yes leaning slacks and shirt but no tie.
"Steve in Manhattan" (blogenfreude01)
05/16/2017 at 21:51, STARS: 0
And ask if their vision is corrected - ‘how far away would you say I was from you?’ That sort of thing ...
"LOREM IPSUM" (lorem---ipsum)
05/16/2017 at 21:52, STARS: 0
Look the judge in the eye and say something along the lines of: “Your honor, I was not using my phone while behind the wheel. It was not in my hand, or even in my field of view. With all respect to the officer who wrote this ticket, and to the court, he honestly made a mistake. I was not using my phone at that time.”
If they still want to do you, they’re gonna do you. Chances are, first offence, they’ll either kick it or reduce the find substantially.
"LOREM IPSUM" (lorem---ipsum)
05/16/2017 at 21:54, STARS: 0
It probably would’t matter. Just because you weren’t actively on a call or sending/receiving a text doesn’t mean you weren’t doing a million other things on the phone whilst behind the wheel.
"Rico" (ricorich)
05/16/2017 at 21:55, STARS: 0
Actually I witnessed a 3 point speeding ticket reduced to a 2 point moving violation while I was there so it can be reduced. It’s harder with a cellphone case I do admit that.
"notsomethingstructural" (notsomethingstructural)
05/16/2017 at 22:00, STARS: 1
Good to know. I know it’s technically within the scope of their authority to prescribe anything in the VTL for the offense, just sounds like it never happens. I’ll see if I can get a copy of my abstract for the case. Good shit.
"notsomethingstructural" (notsomethingstructural)
05/16/2017 at 22:03, STARS: 0
Yeah, I’m working on a bulleted list. E.g., what side of the road were you on (alleges phone was in my left hand, could he see it from the right side?), were you immediately behind me at any point while I was on it, where did you put your lights on and where did I stop... his lights actually came on at the end of an off-ramp and possibly off the highway, so if he alleges I was using it on the off ramp I would ask how the car could steer with the phone allegedly in my left hand driving a manual transition through a light. Stuff like that.
"Steve in Manhattan" (blogenfreude01)
05/17/2017 at 00:56, STARS: 0
And here’s maybe the best tip I can give you: the judge or administrator would rather be anywhere else. I’ve argued in front of all sorts of judges, and trust me, it never goes to plan. Local counsel (VA) leaned over to me when one of the four judges I could have drawn sat down on the bench - said “throw out the 3 minutes you’ve prepared and say in 30 seconds why you’re here, and what you want. In under 30 seconds! Judge had gotten over brain cancer, so they didn’t throw him off the bench despite his losing at his fitness hearing - felt sorry for him. The jokes write themselves.
And yes - I lost that motion to dismiss.
"notsomethingstructural" (notsomethingstructural)
05/17/2017 at 01:50, STARS: 0
really appreciate the advice. in any case here’s the notes i put together, i’ll strike ‘em as they get covered in the testimony. overall the goal is get to 1) based on the info in the ticket and the configuration of the roads there’s no way he could make a direct observation of the phone as he alleges, 2) the car couldn’t drive itself, 3) the description of the phone (“black phone” when it was actually blue) is either wrong based on direct questioning or is insufficient because it could be used to describe any phone. that’s about all i can drum up.
"Steve in Manhattan" (blogenfreude01)
05/17/2017 at 17:42, STARS: 0
So how did it go? (assuming it was today ...).
"notsomethingstructural" (notsomethingstructural)
05/17/2017 at 17:58, STARS: 0
Yeah it was today. The officer was in court and Verizon couldn’t get me phone logs in time to see if there was anything in there, so I laid it over. I found another issue though. Bear with me.
Basically, when Albany was setting a date they had some sort of procedural problem. They returned my plea by mail and told me to appear in court and that my license was suspended. I went the next day and said I have no idea what happened here. They agreed and said (as I recall) that I responded prior to my receipt of the suspension notice (which I never received), and being that I couldn’t have made an in-person plea without the original ticket (which was in the mail), I was powerless to respond since the plea wasn’t rejected by Albany until after my license was suspended. Something to that effect. The judge said they would direct Albany to accept the original plea by mail and the record would be expunged. I was - surprisingly - apologized to for having my time wasted to sort out Albany’s clerical issues.
Well today they didn’t want to grant me a continuance because they said I already skipped a date. I said no, that wasn’t a skipped date, there was a clerical error and that record was expunged when I came in. They said well its on our screen as a skipped date - that you entered a plea after your license was suspended and the suspension was lifted. I said no, the judge told me the original plea by mail was accepted so I didn’t enter a plea in person. I attempted to go through it but the judge basically said they didn’t care and talked me down as if I was blaming everyone else for my problems. Which wasn’t false, being that it was everyone else’s fault (Verizon for the call logs, Albany for the clerical issue, and the DMV for not expunging the record).
So now I have to call Albany to get this sorted out. This should be a real fucking mess, and I have a feeling I’m gonna need to order the transcripts and hire a lawyer, since I feel like if I don’t clear this up it’s going to put me as a trial-jumper for the rest of my life.
So in one way good; in another, much less expected way, very, very badly.
"Steve in Manhattan" (blogenfreude01)
05/18/2017 at 19:04, STARS: 0
If you can track down the original judge/clerk and see if there was a record of the initial disposition, that would help. I doubt there would be audio or a transcript, but there might be a file with notes, or someone willing to write a letter. That apology might extend to cooperation. Geeze - what a mess over a nothing charge.
"notsomethingstructural" (notsomethingstructural)
05/18/2017 at 19:38, STARS: 0
They record all the hearings and I am pretty sure you can order transcripts because they’re required for an appeal. They record all proceedings. So planning to talk to Albany first, transcript second, lawyer third.
"Steve in Manhattan" (blogenfreude01)
05/18/2017 at 20:19, STARS: 0
Good luck, and keep us informed.
"outoftwilightzone" (obscurity)
06/19/2017 at 11:36, STARS: 0
Millenials and their dilemas they seem to want to challenge the laws, cops and the system. Learn which hurdles to jump and which to avoid. I have a nephew that has spent over 20 k trying to defend his dumb actions.
"notsomethingstructural" (notsomethingstructural)
06/19/2017 at 11:55, STARS: 0
Typical boomer, blaming millennials for killing the mail-in ticket industry without giving us any credit for the healthy traffic court system
"outoftwilightzone" (obscurity)
06/19/2017 at 12:13, STARS: 0
Try not to rely so much on electronics when they fail, they tend to leave one up the creek without a paddle. and your example of the Airline staff being behing the secure line where they can’t be reached and you are unable to get a E-pass on your smart phone. I use it all .but always have alternatives, the SHTF when you least expect it. We boomers did develop some of this it’s not exactly perfect.
"notsomethingstructural" (notsomethingstructural)
06/19/2017 at 13:55, STARS: 0
Believe me, the boarding pass thing is not about to be repeated. Harrowing.