Recently, a state appellate court issued an opinion in a New York weapons case illustrating the importance of a detailed review of the evidence and effective cross-examination skills. The case involved a traffic stop during which police found a sawed-off shotgun wedged under the driver’s seat. Police also claim to have discovered a matching shotgun shell in the defendant’s pocket. However, because the evidence relied upon by the court did not match up with the testimony at the suppression hearing, the court reversed the trial court’s denial of the defendant’s motion to suppress.

The Facts of the Case

According to the court’s opinion, police officers initiated a traffic stop after noticing that a vehicle’s license plate didn’t match up with the type of car in the police database. Video evidence of the stop—as well as officer testimony—established that the defendant, who was seated in the rear passenger seat, bent down to the left as the car was coming to a stop. Ultimately, police officers found a sawed-off shotgun under the driver’s seat (near where the defendant was seen bending down) and a matching shotgun shell in the defendant’s pocket.

In a pre-trial motion to suppress, the defendant argued that the officers lacked probable cause or reasonable suspicion to search the vehicle. The trial court rejected the defense motion, finding that the officers conducted a limited pat-down of the defendant for their own safety, at which point they found the shotgun shell. According to the court, this gave the officers probable cause to search the rest of the vehicle, at which point they found the shotgun.

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Earlier this year, a state appellate court issued an opinion in a New York hit-and-run case, discussing the defendant’s claim that his statement was taken in violation of his constitutional rights. However, the court rejected the defendant’s issue on appeal, noting that the requirements of Miranda were not implicated because the defendant was not in “custody” when detectives questioned him.

The Facts of the Case

According to the court’s opinion, a dark-colored pick-up truck hit a pedestrian and then fled the scene. The detective learned that the defendant had a vehicle matching the description, and went to the defendant’s home to speak with him. The detective explained that he was investigating an accident, and that the defendant’s vehicle matched the description of the one that struck the pedestrian. The defendant allowed the detective to inspect his vehicle, at which point the detective noticed that one of the truck’s headlight assemblies was missing.

The detective then asked the defendant a few follow-up questions, including where he was on the night of the incident. The defendant explained that he was at a bar, and drove home on the road where the pedestrian was hit. The detective then asked to take a look inside the defendant’s home, and read the defendant his Miranda warnings. Ultimately, the defendant was charged with leaving the scene of an accident.

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Tickets for texting while driving have increased 35% between 2013 and 2014 in New York State. The increase has been most significant in Westchester County, where testing infractions rose a full 50% from 2013 to 2014. In Rockland County, the increase was 35% and in Putnam, there were 38% more texting tickets in 2014 than the year before.

The penalties for texting while driving have also been greatly enhanced in the last two years. A driver who is found guilty of a texting infraction faces a $200 fine and more importantly, five points on his or her driver’s license. Eleven points in an eighteen month period results in a suspended license, and if a driver gets 6 points or more in the same period, they can be assessed a “Driver’s Responsibility Assessment” of an additional $300.00 by the NYS Department of Motor Vehicles. A second offense within 18 months of the previous conviction will result in a $250.00 fine. A third violation or subsequent violations after the third will lead to a $450.00 fine.

Youthful drivers beware: the penalties for drivers with a junior license or permit are much more stringent. For a driver under 21 with a junior license, first offense convictions result in a 120 day license or permit suspension. Further, due to new regulations which went into effect in November, 2014, young drivers will face a one year license or permit revocation for a second offense within six months of their license being restored. Continue reading ›

One of New York City Mayor Bill de Blasio’s programs since he took office last year is “Vision Zero”, which is designed to reduce traffic and pedestrian fatalities and serious injuries in New York City.  The Vision Zero program has already resulted in a reduction of the standard speed limit in the city from 30 miles per hour to 25 miles per hour, the installation of additional red light cameras and traffic reconfiguration at dangerous intersections.

Another element of the program which is encountering some strong resistance, particularly from transportation unions, is a regulation designed to increase the penalties for drivers who fail to yield to pedestrians crossing the street, resulting in fatalities or serious injuries.  This aspect of Vision Zero has come to the forefront recently after a tragic accident on February 13, 2015.  A fifteen year old girl walking to school was crossing Grand Street with a walk signal when she was struck by an MTA bus operated by Francisco DeJesus.  The young girl was pinned under the front wheel of the bus while Mr. DeJesus was making a left turn, and suffered serious left leg injuries.

Based on the new right of way law with enhanced penalties for pedestrian fatalities or serious injuries, a violation of the law is now classified as a misdemeanor, rather than a traffic ticket.  Drivers who are found to have violated the law can be sentenced to up to thirty days in jail and face fines of up to $250.00.  Mr. DeJesus was arrested for violating the failure to yield law, which his union, the Transportation Workers Union Local 100, feels is unfair.  They contend that DeJesus was not distracted by texting or using a cell phone, was not under the influence of drugs or alcohol, and was not driving recklessly. Rather, this was simply a tragic accident, due to a combination of the chaotic nature of making a left turn on city streets and the blind spots on a bus.

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The Wayne County, Pennsylvania District Attorney’s Office announced last week that there will be charges against a 15 year old driver and her father in a fatal car crash on August 30, 2014 on Goosepond Road in Lake Ariel, Pennsylvania. That fateful day, a 15 year old driver from Pleasantville, New York was allegedly given permission by her father, Michael Ware, to drive his 2001 Chevrolet Suburban to a diner for breakfast. In the vehicle were five other teenagers, including three Bucks County, Pennsylvania teens, Ryan Lesher, Shamus Digney, and Cullen Keffer, who were all killed in the accident when the underage driver was apparently going too fast and flipped the vehicle.   Another two teens, including the driver’s friend from Westchester County, NY, survived the horrific crash.

Witnesses allegedly heard some of the occupants screaming at the driver to slow down moments before the accident. When the police arrived at the scene, the driver is alleged to have exclaimed: “I was driving too fast, arrest me”, as she placed her hands in front of her, expecting to be handcuffed. The driver’s father, Michael Ware, 53, of Eastchester, New York, is charged with involuntary manslaughter, a felony, endangering the welfare of children, and other crimes not yet identified. Ware was arraigned in the Wayne County Courthouse on December 17, 2014, and pled not guilty to all charges.

There is interesting evidentiary conflict in the versions of events as described by Mr. Ware, and his fifteen year old unlicensed daughter, with regard to his knowledge and consent for his daughter to operate the vehicle. Ware’s daughter, who is being charged for the deaths in juvenile Court, purportedly informed investigators that her father gave her permission to operate the vehicle at the time of the fatal crash, and on previous occasions, including earlier that morning when she drove to a local Dunkin Donuts. The daughter’s friend from Westchester County also told police that Mr. Ware walked the two girls to the car and placed an egg sandwich order before his teenage daughter drove off in the car.  However, Mr. Ware denies that he gave his daughter permission to operate the vehicle. Continue reading ›

On May 23, 1957, in the Cleveland home of future boxing promoter Don King, three police officers demanded to enter to search for a man who they believed had been involved in a recent bombing. The tenant of the home, Dollree Mapp, refused to admit the police without a warrant. The officers left and returned several hours later, forcing their way into the home. Ms. Mapp called an attorney and again insisted that the officers produce a search warrant. A struggle ensued between one officer and Ms. Mapp over a piece of paper which the officer claimed was a warrant. The battle over the unwarranted intrusion into Ms. Mapp’s premises ultimately led to the one of the most important constitutional cases in U.S. history. On October 31, 2014, although only reported last week in the New York Times, Ms. Mapp died at the age of 90 in Conyers, Georgia.

After entering the house under false pretenses, the officers searched and discovered some sexually explicit materials, including books and drawings, which Ms. Mapp indicated were the possessions of a previous tenant. Ms. Mapp was handcuffed and arrested on obscenity charges. She was later convicted and sentenced to four years in jail. Her conviction was upheld on appeal to an Ohio appellate Court.

The U.S Supreme Court decided to hear the case originally on First Amendment issues and questions regarding what constituted obscenity. However, when the case of Mapp v Ohio was heard in June of 1961, it took on much greater significance, and became one of the most important decisions in the history of the Court. The issue the Court focused on was the role of the Fourth Amendment, which protects citizens against “unreasonable searches and seizures.” Due to the fact that the prosecutors had never provided a proper search warrant or proved that it ever existed, Ms. Mapp’s conviction was overturned. The Court, in a 6-3 decision, and in extending what is known as the “exclusionary rule”, held that evidence obtained by illegal means, which was previously suppressed only in federal Courts, would now be excluded in state Courts as well. Writing the majority opinion, Justice Tom C. Clark declared: “The state, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal Constitution which it is bound to uphold.”

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In 2013, there were 135,738 texting while driving tickets issued by New York State police officers. Of these tickets, 63% resulted in convictions or pleas of guilty. 26% of texting tickets ended up in a conviction for a violation other than for texting. 10% of texting tickets were dismissed for various reasons, including failure to prosecute, meaning that the officer was not available to testify or did not witness the violation.

At present, a texting while driving ticket or for using a hand held cell phone results in five points on the operator’s license. This is a substantial increase from three years ago, when a conviction of texting while driving or hand held cell phone use would result in 2 points in the operator’s license. 11 points in an 18 month period will lead to the suspension of the driver’s license, and 6 points in 18 months will result in a $300.00 Driver’s Responsibility Assessment (Thank you Governor Pataki), which must be paid in 3 annual installments or all at once. If not paid, this will also cause a suspended license.

Due to the increase in penalties for texting and cell phone infractions, drivers are hiring attorneys more frequently to fight these tickets. The conviction rate for these tickets was 72% in 2012 and 63% in 2013.  As a result, more texting tickets are being reduced to a lower charge, which is the reverse of what the New York State Legislature intended when it increased the penalties for the infractions. However, in the New York City Parking Violation Bureau Courts (Manhattan, Queens, Bronx, Brooklyn and Staten Island), there are no negotiations on moving violations, and the only possibilities are either fight the ticket and win, or plead guilty/lose at trial and have five points assessed. The only way to win these tickets is to have proof that at the time of the infraction, you were not on the phone (through cell phone records), or a witness who can establish that the phone was not being used at the time of the ticket. This is quite different than in the local Courts in Westchester, Orange, Putnam, Rockland and Dutchess counties, in which these tickets will often be reduced in plea bargaining, although not always. Continue reading ›

On November 1, 2014, New York State increased the penalties and fines for drivers who stubbornly continue to drive while texting. Prior to 2011, texting and driving was a secondary violation in New York, meaning that a motorist who was caught driving and texting could not be issued a traffic infraction for this conduct unless he or she was also committing another traffic violation, such as speeding, following too closely or disregarding a traffic control device. Recognizing the dangerousness of texting while driving, the New York State legislature strengthened the law three years ago, making texting and driving a primary infraction with no requirement for another moving violation to be found guilty of the infraction.

Continuing in this vein, the points that are assessed on the drivers’ license for a texting and driving infraction have increased since 2011 from 2, to 3, and now the violation results in a five point assessment due to a strengthening of the law in 2013. The five points is also imposed if the motorist is using a hand held device to make a call, check or send emails, or use the device in any other way. Eleven points within an 18 month period leads to a suspended license, and 6 points in that period will result in a “Driver’s Responsibility Assessment” of $300.00, which must be paid in three annual installments or all at once to avoid a suspension.

Under the new texting law, a first time conviction or plea of guilty to a texting while driving offense for a driver under the age of 21 results in a 120 day suspension of their junior license. If the youthful driver commits a second violation within 6 months of being reinstated, he or she will be looking at a one year license or permit revocation. Fines have also been increased under the tougher new regulation. The maximum fine for a first time offense is now $200.00, increased from $150.00. A second offense committed within 18 months of the first will now carry a maximum fine of $250.00, up from $200.00. A third offense will lead to a maximum fine of $450.00, an increase of $50.00.

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In an article in the NY Times on October 14, 2014, a study published in Law and Human Behavior concludes that teenagers ages 13-17 frequently do not exercise their legal rights to remain silent in police interrogations across the country. The study analyzed 57 videotaped interrogations. None of the subjects had an attorney, and were permitted to leave the room without making any statements if they chose.

The average age of the subjects was 15, and in half of the cases, the interrogator had a weapon. In 16% of the cases, the teenager was in shackles or handcuffed. 12 subjects were accompanied by their parents. The interviews ranged from six minutes to five hours, with the average interview lasting 45 minutes. 37% of the teens gave complete confessions and 31% made statements which were incriminating. It appears that none of the teenagers recognized that they had constitutional rights which they could exercise to terminate the interrogation. Some seemed unconcerned, slept, paced or made light of the circumstances.

Federal statistics reveal that 1.5 million teenagers were arrested in 2011, the last year for which data is available. Confessions can be very persuasive to jurors, yet how reliable is a teenager’s confession when he or she has not been advised of his or her rights and is feeling pressure to respond to questions by an authority figure? Studies show that adolescents tend to think more about the present, and less about long term consequences than adults. Additionally, teenagers may not realize that police officers sometimes lie during interrogations, including suggesting “facts” which they claim to know, which may not be true.

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Jo John John, 36, the man at the wheel of the boat which crashed into barges near the Tappan Zee Bridge last summer, killing two, was sentenced in Rockland County Court on September 16, 2014 to two years in jail.  John pled guilty earlier this year to vehicular manslaughter in the deaths of 30 year old Mark Lennon, of Pearl River, New York, and 30 year old Lindsey Stewart, of Piermont, NY, which occurred on July 26, 2013.  Stewart was to be married one month later to Brian Bond, who was injured in the tragic crash.  Mr. John apologized to the Stewart and Lennon families at his sentencing before receiving the two year sentence, which spares him the possibility of serving time in state prison.

Blood alcohol results revealed that Mr. John had a BAC (blood alcohol concentration) in excess of 0.15% at the time of the fatal accident, almost two times the legal limit of 0.08%.  However, Mr. John, the family members of Mr. Lennon and Ms. Stewart, and other passengers on the boat who were injured but survived, contend that poorly lit barges used in the construction of the new Tappan Zee Bridge were equally, if not more responsible for the tragic accident and have all commenced civil lawsuits against the New York State Thruway Authority.

These family members, including Ray Lennon, the brother of Mark Lennon, have called the sentencing of Mr. John “incomplete justice”, and have urged Rockland County District Attorney Thomas Zugibe to bring criminal charges against the barge owners.  However, Mr. Zugibe stated in a press conference this week that police investigators and a grand jury examined the evidence and found that the sole factor in the fatal crash was John’s intoxication at the time of the accident.  According to Zugibe, “We believe John was solely responsible. He was operating the boat at a high rate of speed in the dark. It was like operating a vehicle with his eyes closed.”

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