Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
My question involves a traffic ticket from the state of: New York (Long Island - Suffolk County - Riverhead)
Driving home from a gas station in Riverhead, NY at 3:00am on 11/24, I got pulled over by a police vehicle. The police officer - judging from his questions - seemed to have suspected DWI, but to his disappointment I did not have anything to drink and was simply coming from a late movie in Stony Brook. Ironically, I had stopped at home first because I grabbed an expired credit card, and since the gas station was less than a mile away from my house I did not grab a jacket and only had a t-shirt on: It was 15F that night. Anyways, I get gas and start going home. I only have to make one right, and then latter one left onto my street, and am moving about 35 mph on a completely empty 30 mph road. I am in no hurry as at best I can save 10 seconds going 45mph, and there are a lot of drunk drivers around that time on Saturday night - Sunday morning. All of a sudden, I see an SUV driving FAST behind me, and catching up to me. We actually got hail that night, and my brakes being not like they used to be and not knowing the state of the driver behind me, I turn on my signal and make a right at the first available stop sign, onto a street that is one before my normal route.
The SUV behind me follows, at this point I suspect it may possibly be a LEO and actually feel slightly safer, because I am not doing anything wrong nor have been drinking. Intending to make the next left and simply continue to my house, I take the road to the end to a T-intersection, pull up to the STOP sign, turn the left signal on, stop completely, street is completely empty in both directions, and the viewing distance is good for at least a mile in each, so I make a left...and then the police lights go on. As I said, I am not worried since I have not been drinking, my lights are on, and I feel I have obeyed all traffic laws as I have driven in this area many, many times. The officer walks up to my car, asks what I am doing, and where I am coming from, and whether I have been drinking. Then he tells me that he pulled me over because there is a sign forbidding left turns at that intersection, I am completely flabbergasted - I have been on that road in the past, and although it is not my usual route I would have remembered there was a no-left-turn sign. However, hoping that it is more of a routine DUI/DWI stop I do not argue or question the policeman's observation, hand over my Dl and registration and hope to be let off with a warning. It is 3:02 at that time, my driver side window is wide open, and it is very cold. The officer does not return with my DL, reg and insurance until 3:40, by then I am freezing and don't know if my car is even going to start with having the inside and glove compartment light on for 35 minutes.
What is worse the cop is carrying a ticket for violating NYS V&T, Article 28:1166B. Then he proceeds to tell me the no-left-turn sign from Elton Ave (regular two-way single lane street connecting to Roanoke Ave) is a new thing since AUGUST-SEPTEMBER, 2013 in order to ease traffic on Roanoke Ave (regular single lane - two way street). Now, at this point I am fuming inside because:
a) it is 3, well almost 4AM and not a single car is on Roanoke - NOT a defense but certainly a point worth considering from a local LEO perspective.
b) I did stop at the stop sign, looked in both directions, and remained cautious. To the best of my recollection, the "NO Left Turn" would have had to be a written sign before the stop sign, because I looked at the stop sign several times and did not notice a huge left arrow with a line across it, or anything about NO LEFT TURNS. Things like that tend to stick out even subconsciously.
c) It is an extremely recent change in local ordinance, and a warning would certainly have made sure I never make this mistake again
d) The officer made me sit in my car in freezing cold weather for close to 40 minutes.
e) I am less than a minute from my house, and have only made this alteration to my route because of wanting to be a defensive driver and avoid a possible but needless accident from a fast moving SUV behind me. - again not my legal defense, but the LEO did not have to be a complete jerk about the situation.
However, I just accept the ticket, say nothing, and get home 30 seconds later cursing the officer for being a total jerk, and possibly braindead if it takes him 40 minutes to fill out a traffic ticket. I look at the ticket and the section/subsection and to my surprise the NYS V&T 1166B corresponds to:
"S 1166. Required position for turning at alley, driveway, private road
or onto property off the roadway. The driver of a vehicle intending to
turn from a roadway into an alley, driveway, private road or onto
property off the roadway, shall approach the turn as follows:
(b) Left turns from two-way roadways. The approach for a left turn
from a two-way roadway shall be made in that portion of the right half
of the roadway nearest the center thereof."
Points in my favor:
1. Roanoke Ave is not an alley,driveway,private road or a property off the roadway
2. The offense is not related to an improper position for a left turn
3. Both the section, and the subsection are incorrect: the correct section/subsection is:
S 1160. Required position and method of turning at intersections. The
driver of a vehicle intending to turn at an intersection shall do so as
follows:
(d) When markers, buttons, signs, or other markings are placed within
or adjacent to intersections and thereby require and direct that a
different course from that specified in this section be traveled by
vehicles turning at an intersection, no driver of a vehicle shall turn a
vehicle at an intersection other than as directed and required by such
markers, buttons, signs, or other markings.
If the ordinance change is very recent, was done simply to improve traffic flow during day hours as stated in the minutes from the town board meeting asking to adopt this law, and the police officer makes a fatal error (clerical error could have been one number off or a name misspelling, but an error in the violation code number, section and subsection seems like the officer is not as well versed in the V&T law as the law requires) I believe I can make a good case to have the ticket dismissed. At the very least, I intend to fight this ticket, and cross-examine the officer regarding his knowledge of the traffic law. I just want to know what you guys think, and what my best course of action might be in this situation.
The mistake as far as the section is present twice (both in computer print and not in pen on paper) on the citation, and the included officer's deposition.
============Other legal issue==============
I just checked the above intersection again, I wish I had taken a picture but I was the one driving, my passenger did not have his phone out, and there were people behind me.
The sign is very small, in comparison to the very large stop (at least 30x30, but maybe even 36x36 - measure tomorrow) sign above it, and states "Right Turn Only". The sign is so small, that two of the cars waiting directly behind me tonight made the same error I made two nights ago, heck even my passenger stated that he has actually made the same error today because of how inconspicuous the sign is.
The sign is not an R3-2, but an R5-805 sign. I am even more displeased after seeing the actual sign, because an R3-2 sign, or even a "NO LEFT TURNS" sign would have been far more effective, given its placement underneath a much larger and more important STOP sign.
Another legal point is that MUTCD states that: Standard: If used, signs for traffic prohibitions or restrictions shall be placed in advance of the prohibition or restriction so that traffic can use an alternate route or turn around. I understand that placing it right at the intersection MAY be considered in advance of the prohibition by certain judges, but placing it right at the intersection when a person is expected to turn their left blinker on AT LEAST 100 feet ahead of the intersection (as per NYS DMV manual), would actually make any driver attempting to turn left until seeing the above sign to be in violation of section 1163, when changing their original intention and turning on the right turning signal (as now required), as well as in violation of section 1166A (improper positioning for a right turn). According to all studies and laws I could find, 3" letters (R5-805 sign) have an effective visibility distance of 50 feet for someone with 20/20 vision, and a maximum visibility of 100". NYS only requires 20/40 vision to issue a DL without eyeglasses restriction, so the above visibility distances would have to be twice as high for a person with 20/40 vision to see them.
Given the above argument, the poorly chosen regulatory sign and its visibility, and the section and subsection fatal error present twice - on the citation and the officer's deposition - I find it hard to believe that any judge would not dismiss this citation. Your opinions?
Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
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conanav
a) it is 3, well almost 4AM and not a single car is on Roanoke - NOT a defense but certainly a point worth considering from a local LEO perspective.
As you say, not a defense.
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b) I did stop at the stop sign, looked in both directions, and remained cautious.
If the turn is unlawful, it is irrelevant that you were cautious when making the unlawful turn.
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c) It is an extremely recent change in local ordinance, and a warning would certainly have made sure I never make this mistake again
If there's a sign, the fact that it's recently installed may be something you would raise when "throwing yourself on the mercy of the court" or prosecutor, but it's not a defense.
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d) The officer made me sit in my car in freezing cold weather for close to 40 minutes.
As you know,t hat's not a defense.
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e) I am less than a minute from my house, and have only made this alteration to my route because of wanting to be a defensive driver and avoid a possible but needless accident from a fast moving SUV behind me. - again not my legal defense, but the LEO did not have to be a complete jerk about the situation.
As you say, not a defense.
As for the officer citing the incorrect code provision, most courts will permit amendment. Some courts will insist upon dismissal and refiling. On rare occasion a court will dismiss with prejudice. It's possible that at trial the officer won't recall why he issued the ticket (the sign) and won't be able to explain the justification for the ticket. You are free to try to convince the court that the signage is inadequate, although even if you establish a problem with the signs that doesn't guarantee a favorable outcome. It's up to you whether you roll the dice.
Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
I understand the lack of legal standing with the five points I listed, and I only used them to illustrate the complete lack of understanding, compassion and mercy from the LEO during the traffic stop. I realize that the law is the law, but I know the officer has been working for the town for over a decade and if there was even one single instance where he let a driver go without a ticket(and I actually know for a fact he has), he cannot really take the high moral ground anymore.
However,the latter point regarding the improper citation does present a possibility for a dismissal. I have heard and read quite a wide range of "legal" opinions regarding this particular error, and in the majority of cases this was considered a fatal - not a clerical - error and the violation had to be dismissed.
I am not positive about it, but it appears that legally a person cannot plead to the wrong charge, in a sense that any charge is a charge and if it is wrong then the prosecutor should not be able to legally substantiate it in court. In other words, if I respond to this charge and enter a plea of not guilty, I will be effectively putting myself in jeopardy. While I have a legal defense against the cited charge (as proven by the officer's supporting deposition describing something completely different happening than the violation code specifies), I can theoretically still be considered guilty by the court.
I don't understand how any court could decide to dismiss the original citation and issue a new one or try to amend the original violation, after the plea is entered by a defendant. While I understand it is only a traffic violation, it is still considered a criminal charge and the accused is put at risk at the moment he is handed the citation. The lack of response will always result in a guilty verdict.
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I plan to present the following points at the hearing, as my legal arguments for the dismissal of the violation:
1. The violation code written on the citation, representing the charge I am defending myself against, does not correspond to the description of the violation on the citation, nor on the officer's supporting deposition handed along with the "simplified information citation".
Although, I am hopeful the judge will dismiss the charge at this point, I realize it may be done so without prejudice. Therefore, my next argument will be:
2. If the officer shows up and takes the stand, he will likely describe the events as described on the "supporting deposition" that I was given along with the citation. According to N.Y. CPL. LAW § 100.20, a supporting deposition is a document "containing factual allegations of an evidentiary character", is considered a sworn statement, and is affixed with a personal signature of the LEO. If such a document contains contradictory information (the listed statute and violation code ON THE DEPOSITION does not correspond to observation described in the same document), how can it be viewed as evidence to support the charge? It seems to me, the moment the LEO confirms his own signature on the supporting deposition, his recollection of the events is immediately questionable and the citation should be dismissed. In other words, if the officer made a critical mistake at the time of the stop, how can he and the court be sure which part of his recollection is correct: the cited statute section and subsection made at the time of the stop, or his description of events several weeks later on the stand?
3. If necessary, I will cite precedent for a dismissal, because of supporting deposition insufficiency, errors and inaccuracies. PEOPLE v. BORN 166 Misc.2d 757 (1995), PEOPLE v HUSSEY 2006 NY Slip Op 51727(U)
4. I have also found NY appellate court decisions that state the officer's mistake of law (not mistake of fact, and I believe incorrectly cited statute should be the former as that represents the actual charge defended against in court)is grounds for suppression of the original charge, but may be considered to be in good faith for any underlying charges i.e. if the officer discovered DWI, drugs in the vehicle, insurance/registration sticker issues etc. In my situation there were no offenses charged after the original traffic stop so I believe it may apply.
If anyone could provide any advice and/or criticism regarding the above legal arguments I would be thankful.
Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
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conanav
I understand the lack of legal standing with the five points I listed, and I only used them to illustrate the complete lack of understanding, compassion and mercy from the LEO during the traffic stop. I realize that the law is the law, but I know the officer has been working for the town for over a decade and if there was even one single instance where he let a driver go without a ticket(and I actually know for a fact he has), he cannot really take the high moral ground anymore.
So while you are complaining about the officer not having any understanding, compassion or mercy, and not giving you a simple warning but instead issuing you a citation, you are saying that if he had given a warning at any time during his career as a cop, then his moral character is in question. Unfortunately for you, and though you can still try that route, his is not about what he has done or has not done in the past, this is about YOU committing a violation he witnessed. You can try and question his morality, and his integrity or whatever, rest assured all that will do is waste a few minutes of the court's time. The end result will be that his testimony/statement will likely suffice to secure a conviction against you.
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conanav
However,the latter point regarding the improper citation does present a possibility for a dismissal. I have heard and read quite a wide range of "legal" opinions regarding this particular error, and in the majority of cases this was considered a fatal - not a clerical - error and the violation had to be dismissed.
Even if it is dismissed, it can get reissued if it is still within the statute of limitations for the type offense committed. That would be covered under CPL 30.30 which I linked below... So I'm sure you'll agree that rather than dismissing, reissuing, refiling and wasting all that effort and time, the citation getting amended is a more reasonable and expeditious alternative. If you disagree, that would be unfortunate as ultimately, the decision is not up to the defendant. The prosecutor decides and the judge has little reason to deny the motion to amend. Actually, it is more that simply a discretionary matter for the judge to decide. CPL 170.35 places specific restrictions on dismissals of the kind you're arguing for if in fact an amendment can resolve the insufficiency or error.
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conanav
I am not positive about it, but it appears that legally a person cannot plead to the wrong charge.
If it is at a time during the proceedings where you have to enter a plea, there is no such thing as "cannot plead"... In fact in most states, if you refuse to enter a plea then a "not guilty" plea will be entered on your behalf. So rather that set the judge off and start the proceedings on the wrong foot and in the wrong direction, you simply plead not guilty and explain why you did so.
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conanav
in a sense that any charge is a charge and if it is wrong then the prosecutor should not be able to legally substantiate it in court.
The prosecutor doers not have to substantiate the charge before you enter a plea... That is what a trial is for!
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conanav
In other words, if I respond to this charge and enter a plea of not guilty, I will be effectively putting myself in jeopardy.
You are not in jeopardy if you plead not guilty to one charge, it gets dismissed and another charge is filed thereby requiring you enter another plea.
Double jeopardy forbids the prosecution from putting you on trial for the same charges after you had been acquitted of that same charge or convicted of the same charge. In this case, one violation of one statute is dismissed, and another violation of another statute is refiled. No double jeopardy.
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conanav
While I have a legal defense against the cited charge (as proven by the officer's supporting deposition describing something completely different happening than the violation code specifies), I can theoretically still be considered guilty by the court.
You're not theoretically anything. If you were considered guilty by the court, then the court would not waste its time conducting a second trial, or for that matter allowing for an amendment. Instead the court would simply find you guilty and sentence you. But that is not what happens.
With all that said, you really have not presented anything that is likely to get you cleared of this violation. At least not in the manner you are expecting. The officer having submitted an affidavit might mean he isn't required to appear to testify and so that possibility for a dismissal for him not showing up is out the window as well. If you still feel you have a chance otherwise, then it is up to you to fight it however which way you can. If you happen to prevail, then more power to you but to expect us to tell you that you have a legitimate defense when in fact you don't, that would be misleading and highly inappropriate, and a waste of your time and that of the court and prosecutor. Not likely to happen here.
As for your numbered points:
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conanav
1. The violation code written on the citation, representing the charge I am defending myself against, does not correspond to the description of the violation on the citation, nor on the officer's supporting deposition handed along with the "simplified information citation".
1. By law, an amendment is going to be the likely course of action here. CPL 100.50 allows for such an amendment to be made at any time prior to plea entry or even prior to trial. If you feel you need time to prepare a defense that it is incumbent upon you to move for a continuance to prepare a defense. But in the grand scheme of things, and since you are also in possession of a supporting deposition that contains information about the actual charge you will be facing, since you were there when the officer pulled you over and discussed the violation with you, and last but not least, and in light of the argument you are standing there making about the citation containing an error, you should have prepared a defense for the actual charge, and as such, should not expect too long of a delay/continuance.
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conanav
If the officer shows up and takes the stand, he will likely describe the events as described on the "supporting deposition" that I was given along with the citation. According to N.Y. CPL. LAW § 100.20, a supporting deposition is a document "containing factual allegations of an evidentiary character", is considered a sworn statement, and is affixed with a personal signature of the LEO. If such a document contains contradictory information (the listed statute and violation code ON THE DEPOSITION does not correspond to observation described in the same document), how can it be viewed as evidence to support the charge? It seems to me, the moment the LEO confirms his own signature on the supporting deposition, his recollection of the events is immediately questionable and the citation should be dismissed. In other words, if the officer made a critical mistake at the time of the stop, how can he and the court be sure which part of his recollection is correct: the cited statute section and subsection made at the time of the stop, or his description of events several weeks later on the stand?
2. You can pretend its all such a difficult concept for you to understand but you see, the problem with that idea is that it is not for you to understand. If the judge sees that the deposition is pretty descriptive of a set of events describing one violation, versus a citation wherein the only description therein is a 5 digit combo, the potential for error there is more definitive that in the deposition, with its long sentences where a typo is not likely to impact the meaning and effect by much, so it should be clear to any reasonable person that the officer simply committed a typo on the citation, that gets corrected, all is well with everyone.
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conanav
3. If necessary, I will cite precedent for a dismissal, because of supporting deposition insufficiency, errors and inaccuracies. PEOPLE v. BORN 166 Misc.2d 757 (1995), PEOPLE v HUSSEY 2006 NY Slip Op 51727(U)
Not only is it not necessary, it isn't relevant. The supporting deposition in this case appears to be (is in fact) an accurate representation what transpired on that day. And so arguing that it is insufficient, nor is it erroneous/inaccurate is based on claims that not only you could not support. But in your first point, you've already argued that the error was in the citation. So when you can find case law stating that a clerical error on the citation would make for a case for dismissal, then you might have a valid argument.
Lastly....
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conanav
4. I have also found NY appellate court decisions that state the officer's mistake of law (not mistake of fact, and I believe incorrectly cited statute should be the former as that represents the actual charge defended against in court)is grounds for suppression of the original charge, but may be considered to be in good faith for any underlying charges i.e. if the officer discovered DWI, drugs in the vehicle, insurance/registration sticker issues etc. In my situation there were no offenses charged after the original traffic stop so I believe it may apply.
A typo, is a typo, no matter how desperate you are for a dismissal, it is still a typo and a typo, not only subject to a judge's call as being simple enough that it can be amended, and therefore must be amended, it is actually a statutory requirement that prohibits a dismissal and required that the correction be made. NY CPL 170.35. I trust you can look that statute up on your own but let me provide you with a relevant case law citation that is directly on point as to what has transpired here:
From People v. Cobb, 2 Misc. 3d 237
Because the court, having reviewed both the accusatory and factual portions of the accusatory instrument, finds that the foregoing defects, one or both of which appears likely attributable to a typographical error, are "of a kind that may be cured by amendment" (CPL 170.35 [1] [a]), or by a jurisdictionally valid superceding information (CPL 100.50 [1]), the court denies the motion to dismiss at this time and grants the People leave to move to amend or otherwise cure the defects in the second count of the accusatory instrument within the time frame allotted by CPL 30.30.[*]
In summary, CPL 170.35 states that a charge is considered insufficient and must the be subject to a dismissal UNLESS the errors therein can be corrected by amendment. CPL 100.50 states that the amendment can be made at any time "at any time before entry of a plea of guilty to or commencement of a trial" as long as it occurs within the time limitations under CPL 30.30 (which you will find HERE).
Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
While I appreciate your reply, I am rather confused by several of your points.
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I am not positive about it, but it appears that legally a person cannot plead to the wrong charge.
If it is at a time during the proceedings where you have to enter a plea, there is no such thing as "cannot plead"... In fact in most states, if you refuse to enter a plea then a "not guilty" plea will be entered on your behalf. So rather that set the judge off and start the proceedings on the wrong foot and in the wrong direction, you simply plead not guilty and explain why you did so.
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in a sense that any charge is a charge and if it is wrong then the prosecutor should not be able to legally substantiate it in court.
The prosecutor doers not have to substantiate the charge before you enter a plea... That is what a trial is for!
You are either misunderstanding my point here completely, or are providing a counter-argument for an argument sake. First of all, while it may be so in other states, Expert Law does ask for the state of jurisdiction, and as clearly stated on the citation if I do not enter a plea to this traffic citation for any reason, the court will automatically consider me guilty of the filed offense and not vice-versa. Secondly, it was not my intention to "set the judge off" in any way, I was simply reiterating that when a LEO officially charges you with whatever offense he believes you committed, you MUST respond to that specific accusation, whether it in fact happened or is a case of mistaken identity, a clerical error or whatever else it might be.
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1. By law, an amendment is going to be the likely course of action here. CPL 100.50 allows for such an amendment to be made at any time prior to plea entry or even prior to trial. If you feel you need time to prepare a defense that it is incumbent upon you to move for a continuance to prepare a defense. But in the grand scheme of things, and since you are also in possession of a supporting deposition that contains information about the actual charge you will be facing, since you were there when the officer pulled you over and discussed the violation with you, and last but not least, and in light of the argument you are standing there making about the citation containing an error, you should have prepared a defense for the actual charge, and as such, should not expect too long of a delay/continuance.
2. You can pretend its all such a difficult concept for you to understand but you see, the problem with that idea is that it is not for you to understand. If the judge sees that the deposition is pretty descriptive of a set of events describing one violation, versus a citation wherein the only description therein is a 5 digit combo, the potential for error there is more definitive that in the deposition, with its long sentences where a typo is not likely to impact the meaning and effect by much, so it should be clear to any reasonable person that the officer simply committed a typo on the citation, that gets corrected, all is well with everyone.
I checked CPL 100.50 and as you said it yourself it allows for an amendment prior to a plea or trial, but not after it. Additionally, the supporting deposition I received DOES NOT contain information about the charge I will be facing. I am cited for 1166B and have responded to 1166B, and the information on the supporting deposition actually clears me of 1166B. Both the citation and the supporting deposition mention the same incorrect violation code: 1166B. If the judge does assume it is a clerical error, he will have to correct both the citation and the supporting deposition. The officer is not required to provide the deposition at the time of the stop, and as such he does have to time to inspect and correct any clerical mistakes. Perhaps it is a difficult concept for me to understand, but I don't understand how a LEO can make a mistake on his deposition, which he can take a few extra days to compose, and have it be alright and simply corrected by the judge at trial in the interest of "justice".
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Not only is it not necessary, it isn't relevant. The supporting deposition in this case appears to be (is in fact) an accurate representation what transpired on that day. And so arguing that it is insufficient, nor is it erroneous/inaccurate is based on claims that not only you could not support. But in your first point, you've already argued that the error was in the citation. So when you can find case law stating that a clerical error on the citation would make for a case for dismissal, then you might have a valid argument.
It is very necessary. I already realize that citation errors(the FIRST ERROR) are amendable, but here I am contesting the SECOND ERROR on the supporting deposition itself. I am not sure why you are so fixated on the FIRST citation error, but ignore the SECOND supporting deposition error which the courts found a lot more critical. This is from People v Hussey (2006) "The supporting deposition served on the V&TL 1192 violation under ticket number LV388448-4 . was the fill in the box form that is in standard use by the New York State Police and contains a verification as required by law". The officer is required to verify his statement.
In People v. Cobb(2003), which you mentioned, the typographical mistakes were made regarding hearsay allegations on the document. The defendant tried to suppress his own statement to the police officer, which was mentioned on the charging document, in order to make the whole document defective. Not only is this very different from my situation, it has no relation to traffic law (Cobb was a sex offender) as there was no separate citation and supporting deposition, nor any error regarding the actual charge, and has been decided before People v Hussey.
170.35 also states that "An information, a simplified information, a prosecutor's information or a misdemeanor complaint, or a count thereof, is defective: b)The statute defining the offense charged is unconstitutional or otherwise invalid. "
Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
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conanav
You are either misunderstanding my point here completely, or are providing a counter-argument for an argument sake.
I am not providing a counter argument. I am providing you with facts as to why your plan will not work out, facts that show you will be unpleasently surprised when you go to court.
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conanav
First of all, while it may be so in other states, Expert Law does ask for the state of jurisdiction, and as clearly stated on the citation if I do not enter a plea to this traffic citation for any reason, the court will automatically consider me guilty of the filed offense and not vice-versa. Secondly, it was not my intention to "set the judge off" in any way, I was simply reiterating that when a LEO officially charges you with whatever offense he believes you committed, you MUST respond to that specific accusation, whether it in fact happened or is a case of mistaken identity, a clerical error or whatever else it might be.
None of that changes the fact that thew charge can be amended prior to pleas entry or prior to trial.
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conanav
I checked CPL 100.50 and as you said it yourself it allows for an amendment prior to a plea or trial, but not after it.
And it is your opinion that the prosecuting attorney is going to go to trial without reviewing the summons and the supporting deposition and without noticing the discrepancy?
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conanav
If the judge does assume it is a clerical error, he will have to correct both the citation and the supporting deposition.
First, the judge will not be correcting anything. The prosecutor will. Second, there is no need to correct both. Only the citation will need to be corrected at which time, it will match what the supporting deposition describes and the trial will proceed.
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conanav
Perhaps it is a difficult concept for me to understand, but I don't understand how a LEO can make a mistake on his deposition, which he can take a few extra days to compose, and have it be alright and simply corrected by the judge at trial in the interest of "justice".
Again, it is easier to believe that the error was made on the citation and not on the deposition as the latter goes into detail describing events, what happened and why you got cited.
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conanav
It is very necessary. I already realize that citation errors(the FIRST ERROR) are amendable, but here I am contesting the SECOND ERROR on the supporting deposition itself.
Once the first error is amended to match the offense described in the supporting deposition, there will be no second error.
If you're still not understanding what I am posting , or if you are still "rather confused" by what I have stated here, just re-read that one short line again. It is pretty simple. And I bolded it for easy reference.
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conanav
I am not sure why you are so fixated on the FIRST citation error, but ignore the SECOND supporting deposition error which the courts found a lot more critical.
Fixated? How about I do this... Leave you to continue believing that there is a second error, thinking that you have a case to argue, and hoping that you will get a dismissal when the entire case is likely to take an opposite turn to all of your beliefs. You are assuming that you can control the proceeding, that you can force the judge to believe what you would like him to believe and that the prosecutor has no say so or control over what happens.
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conanav
This is from People v Hussey (2006) "The supporting deposition served on the V&TL 1192 violation under ticket number LV388448-4 . was the fill in the box form that is in standard use by the New York State Police and contains a verification as required by law". The officer is required to verify his statement.
The officer is required to verify his statement. That means he is required to ensure that his statement is representative of the facts of the case, and is descriptive of the events he witnessed. It does not mean that the deposition has to match the citation even if the citation cited an erroneous statute number.
And unless you are suggesting that he made up the events he described in the supporting deposition, then you have no argument that there is a second error.
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conanav
In People v. Cobb(2003), which you mentioned, the typographical mistakes were made regarding hearsay allegations on the document. The defendant tried to suppress his own statement to the police officer, which was mentioned on the charging document, in order to make the whole document defective. Not only is this very different from my situation, it has no relation to traffic law (Cobb was a sex offender) as there was no separate citation and supporting deposition, nor any error regarding the actual charge
I am not arguing the elements of the Cobb case. I simply cited Codd because it offers an interpretation of how CPL 170.35, CPL 100.50 and CPL 30.30 work side by side. Unfortunately, even that simplified interpretation is lost on someone who refuses to consider any point of view and instead, would rather proceed on baseless meaningless assumptions that have no basis under the law.
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conanav
People v. Cobb(2003)... decided before People v Hussey.
And? Are you suggesting that every New York State case law holding that decided before Hussey is no longer valid just because Hussey defined a supporting deposition as being a document that must be verified by the officer who wrote it?
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conanav
170.35 also states that "An information, a simplified information, a prosecutor's information or a misdemeanor complaint, or a count thereof, is defective: b)The statute defining the offense charged is unconstitutional or otherwise invalid. "
Is ^^this^^ going to be the last straw you're going to be grasping?
The statute described in the supporting deposition (although you have not indicated what it is), is presumably valid and not unconstitutional; at least thus far, you have not suggested that it is invalid nor unconstitutional. Similarly, the statute in the citation is not unconstitutional, nor is it an invalid statute; it simply does not apply in your case and based on the events described in the supporting deposition. However, once it is amended, it will be applicable. Problem solved.
For your information, the only relevant subsection under 170.35 is subsection (1)(a), and the only relevant subsection under 100.50 is subsection (1)
Now, it would be in your best interest to try and come up with an alternative defense or, judging by the circumstances you described, doing so might be near impossible, you should at least prepare yourself mentally for the possibility that you will lose and be convicted. This shouldn't be much of a surprise as you don't really deny committing the violation. Instead, you've admitted it and made silly excuses. You might want to try and see if the prosecutor would be willing to negotiate some sort of deal, in fact you'd be better off exploring such possibility before you give any indication what your plan is; not because it will give you more bargaining power, quite the contrary, because it simply leaves no doubt that you have no chips to bargain with and that you're in over your head.
At the end of the day, it isn't me you have to convince. If you can convince the powers that be, more power to you...
Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
I am not trying to be confrontational in any way, and I actually appreciate direct criticism especially in a situation that I have no experience with.
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Fixated? How about I do this... Leave you to continue believing that there is a second error, thinking that you have a case to argue, and hoping that you will get a dismissal when the entire case is likely to take an opposite turn to all of your beliefs. You are assuming that you can control the proceeding, that you can force the judge to believe what you would like him to believe and that the prosecutor has no say so or control over what happens.
If you can believe there is an error on the citation (on simplified information) regarding the statute, then you should believe there is an error on the supporting deposition. I have already stated it, and will state it again: both the CITATION and the SUPPORTING DEPOSITION list the same erroneous violation code: 1166B.
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The statute described in the supporting deposition (although you have not indicated what it is), is presumably valid and not unconstitutional; at least thus far, you have not suggested that it is invalid nor unconstitutional.
Yes, I have stated it. "I am cited for 1166B and have responded to 1166B, and the information on the supporting deposition actually clears me of 1166B. Both the citation and the supporting deposition mention the same incorrect violation code: 1166B."
Also,the notion of a "valid" or "invalid" statute is not defined in 170.35. I realize, the judge may (and likely) will find that an invalid statute is only one that does not exist at all, and a dismissal of the original citation with amendment may likely be ordered. In fact, 100.50 orders (it clearly states that it MUST BE) the dismissal of the original complaint, when an amendment is ordered or superseding information is introduced.
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Now, it would be in your best interest to try and come up with an alternative defense or, judging by the circumstances you described, doing so might be near impossible, you should at least prepare yourself mentally for the possibility that you will lose and be convicted. This shouldn't be much of a surprise as you don't really deny committing the violation. Instead, you've admitted it and made silly excuses. You might want to try and see if the prosecutor would be willing to negotiate some sort of deal, in fact you'd be better off exploring such possibility before you give any indication what your plan is; not because it will give you more bargaining power, quite the contrary, because it simply leaves no doubt that you have no chips to bargain with and that you're in over your head.
At the end of the day, it isn't me you have to convince. If you can convince the powers that be, more power to you...
Believe me, I fully realize that I may be convicted. Secondly, my original irritation with the situation and the subsequent citation will not be mentioned in court in any way, nor used as part of my defense.
At this time I am only certain of 2 things:
a) both the citation and the supporting deposition contain the same violation code. They are both computer printouts so I am absolutely certain the code is in fact 1166B, and the fact that such code is listed on both pieces of paper has been verified by several people.
b) the text of 1166B has nothing to do with the moving violation I described.
Assuming an amendment is subsequently ordered by the court (and if I understand your assertion correctly, it very likely will be ordered), the original citation will have to be dismissed as per 100.50. The court should(?) grant me a continuance in this instance.
Now,this is my defense: I WILL be going for the dismissal of the original citation and I expect to get it as defined by 100.50, with a 99% possibility of citation being amended. However, I will be trying to contend the amendment order because of the second error on the supporting deposition. If the officer's supporting deposition contains an error, how can the officer or the sitting judge be absolutely sure which version is correct, weeks after the incident. Here, I am also planning to mention the other cases I listed, showing that an error made on the supporting deposition has led to a full dismissal in several cases in NYS, and should not be ignored or treated in the same manner as the one on the citation(simplified information)....I am hoping that at the very least it may produce some doubt in the judge's mind as far as the citation amendment.
My hope is that the supporting deposition document - signed by the officer and showing a violation code error - may cast some doubt as far as the correct statute that the citation should be amended to in this case. If the judge agrees (and I realize this is a long-shot) then the original citation will have to be dismissed with prejudice. If not, at the very least I expect to get an amendment and a continuance, and then I will be at the mercy of the prosecutor and perhaps will try to plea down.
Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
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conanav
I am not trying to be confrontational in any way,
Neither am I... If it sounds as if I am being a bit harsh that is not my intention. Instead, and in spite of my lack of direct experience with NY law, the statutes are pretty clear and simple to understand.
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conanav
and I actually appreciate direct criticism especially in a situation that I have no experience with.
Glad to hear that.. I've been where you are plenty of times, there were times where I was on track and there were others that I wish I could have done the exact opposite. So my criticism is simply an attempt to point you in what I believe is the path of least resistance and highest benefit. And by "benefit" it is my belief that there are some cases that are impossible to win, and the best alternative when dealing with those would be to make put the energy and effort into mitigating damages and losses rather than chasing after a dismissal that is going to be easy to overrule.
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conanav
If you can believe there is an error on the citation (on simplified information) regarding the statute, then you should believe there is an error on the supporting deposition. I have already stated it, and will state it again: both the CITATION and the SUPPORTING DEPOSITION list the same erroneous violation code: 1166B.
Again, it is not for me to believe... I am basing my replies upon the facts that you provided... You described what you did provided the statute number that appears on the citation, which clearly does not match. You later requested and received a supporting deposition, the content of which we were up until now pretty vague an the way you described them previously...
For example, here is one description from post #3 above:
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1. The violation code written on the citation, representing the charge I am defending myself against, does not correspond to the description of the violation on the citation, nor on the officer's supporting deposition handed along with the "simplified information citation".
Considering what you offered now, we can say that the violation code is the same on both documents, but we have no idea what the violation description states, nor do we know what the type of violation the actual deposition describes.
Point is, it still is not likely to be a cakewalk for you… The presumption is that the lengthy supporting deposition could not and would not be representative of all that information and that all of it was made up by the officer. Instead, it will likely represent details of the offense you actually committed and as such, I simply still cannot see a dismissal as being that easy a task.
In fact, you could not even argue that your ability to defend yourself has been compromised simply because if you are in possession of the supporting deposition, and with all the details tat it offers you still ignored it and based your defense on what you are arguing is an erroneous code section, then you really have no one to blame but yourself.
So even with your last disclosure, you still have a lot of work an a lot of praying if you have any hope of getting an outright dismissal. I am thinking that even if you motion for a dismissal, don't lose sight of the possibility that dismiss the possibility that either the prosecutor or someone noticed the discrepancy, contacted the officer, discussed the matter figured out the error and had it all prepared for amendment on the same date you are scheduled to appear.
Yes, what I am saying is it appears that the criminal procedure and rather than allowing for an outright dismissal in cases would also allow for an amendment of the supporting deposition if that can happen and assuming the amendment is made before trial.
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conanav
Yes, I have stated it. "I am cited for 1166B and have responded to 1166B, and the information on the supporting deposition actually clears me of 1166B. Both the citation and the supporting deposition mention the same incorrect violation code: 1166B."
What about the content of the supporting deposition? Assuming that it describes the actual violation you committed, it would be clear that the officer simply cited the wrong number but was under the impression it represented something else, he went to complete the supporting deposition and ended up writing in the same code section number as the citation but in the description he provided there, he described the violation you did in fact commit.
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conanav
Also,the notion of a "valid" or "invalid" statute is not defined in 170.35. I realize, the judge may (and likely) will find that an invalid statute is only one that does not exist at all, and a dismissal of the original citation with amendment may likely be ordered. In fact, 100.50 orders (it clearly states that it MUST BE) the dismissal of the original complaint, when an amendment is ordered or superseding information is introduced.
I think the plain meaning rule will work as far as defining valid or invalid in this case. Which basically states that statutes are to be interpreted using their normal meaning unless such a term is defined to mean something specific somewhere else under the code. Valid, and invalid will obviously take on their every day meaning as used in every day language.
As for the dismissal part, once “[I]another prosecutor's information is filed with the same court charging you with a corrected document, the first instrument is superseded by the second, you’ll get arraigned again, the first will get outright dismissed…
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conanav
Assuming an amendment is subsequently ordered by the court (and if I understand your assertion correctly, it very likely will be ordered), the original citation will have to be dismissed as per 100.50. The court should(?) grant me a continuance in this instance.
Well, one argument could say that you were well aware of the error, the content of the supporting deposition would have been sufficient for you to be able to prepare a defense for the proper charge, and therefore an extension should not be granted. You can argue that you were formally charged with the one charge which happens to be the one you prepared for. I think the determining factor will likely end up being how long has it been since you were cited and what statutory time restrictions are there on the type of prosecution you are facing (see CPL 30.30 linked above in a previous post). Assuming no time limits are violated thereby deeming the entire matter invalid, you can expect to be granted a few days worth to prepare yourself. Although I am not sure why you would want to drag it on longer… But its your case.
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conanav
Now,this is my defense: I WILL be going for the dismissal of the original citation and I expect to get it as defined by 100.50, with a 99% possibility of citation being amended. However, I will be trying to contend the amendment order because of the second error on the supporting deposition. If the officer's supporting deposition contains an error, how can the officer or the sitting judge be absolutely sure which version is correct, weeks after the incident.
It really isn’t that complicated…. The officer need not provide much information… And there is only one version, If you were to type up the contents of the supporting deposition, I could probably tell you exactly which code section it represents. So they scratch out the 1166B and write in another 4 digit number and a subsection if applicable… Done deal!
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conanav
Here, I am also planning to mention the other cases I listed, showing that an error made on the supporting deposition has led to a full dismissal in several cases in NYS, and should not be ignored or treated in the same manner as the one on the citation(simplified information)....I am hoping that at the very least it may produce some doubt in the judge's mind as far as the citation amendment.
To create any reasonable doubt about the content of the statement within the supporting deposition in your case, you would have to present competent evidence that has a relative chance of overcoming the facts that are presented in that deposition. The case law you cited isn’t going to change the facts of your case, instead it simply provides that if the contents of the statement of the supporting deposition represents erroneous facts, then the supporting deposition must be excluded and if that is excluded then there are no facts to support the charge and it too shall be dismissed. But since the statement contained within the supporting deposition in your case is representative of the actual facts of the case and since the only error that exists is a mere typo in the code section cited, then there is not a defect in the supporting deposition and it is not likely to get excluded.
In other words, the case law you are presenting represents a different basis for a dismissal than what your case hinges upon. But you can still cite it if you choose.
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conanav
My hope is that the supporting deposition document - signed by the officer and showing a violation code error - may cast some doubt as far as the correct statute that the citation should be amended to in this case. If the judge agrees (and I realize this is a long-shot) then the original citation will have to be dismissed with prejudice. If not, at the very least I expect to get an amendment and a continuance, and then I will be at the mercy of the prosecutor and perhaps will try to plea down.
The only issue as you described it was that the intersection described on the citation is not representative of the elements described under 1166B. As such, and since they can deduce which other code section you should have been cited for , and since it is likely to match those descriptive elements contained in the replacement code, you’re still hoping for too much. On the other hand, there are prosecuting attorneys who maybe under severe pressure, good prosecutors can have some bad days, or maybe s/he isn't as sharp as others and you’re free to try and take advantage of such short comings.
Good luck!
Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
Thank you so much, that was a great reply with plenty of advice. I realize why a deposition error alone - or even together with the citation error - may not be sufficient enough for a dismissal with prejudice.
However, reading section NYS CPL 100.45(2) with regards to prosecutor's information, it states that "The provisions of section 200.70 governing amendment of indictments apply to prosecutor's informations."
Now, CPL 200.70(2) states that : "1. At any time before or during trial, the court may, upon application
of the people and with notice to the defendant and opportunity to be
heard, order the amendment of an indictment with respect to defects,
errors or variances from the proof relating to matters of form, time,
place, names of persons and the like, when such an amendment does not
change the theory or theories of the prosecution ..."
and 200.70(2) states that: "An indictment may not be amended in any respect which changes the
theory or theories of the prosecution as reflected in the evidence
before the grand jury which filed it; nor may an indictment or superior
court information be amended for the purpose of curing:
(a) A failure thereof to charge or state an offense; or
(b) Legal insufficiency of the factual allegations; or
(c) A misjoinder of offenses; or
(d) A misjoinder of defendants. "
It appears that changes related to "form, names,time and place" are allowed but amendments related to the charge are not in New York State. The courts have actually specifically prevented a change (or had the allowed amendment and conviction reversed on appeal by the appellate court) to the count itself in People v Boula 2013 NY Slip Op 03875, and People v Cordeiro 2008, People v Perez 1994 and several others.
Could I not argue that changing the violation code to the correct one constitutes a change to the count itself as my plea was a response to 1166B?
Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket
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conanav
Thank you so much, that was a great reply with plenty of advice. I realize why a deposition error alone - or even together with the citation error - may not be sufficient enough for a dismissal with prejudice.
However, reading section NYS CPL 100.45(2) with regards to prosecutor's information, it states that "The provisions of section 200.70 governing amendment of indictments apply to prosecutor's informations."
Now, CPL 200.70(2) states that : "1. At any time before or during trial, the court may, upon application
of the people and with notice to the defendant and opportunity to be
heard, order the amendment of an indictment with respect to defects,
errors or variances from the proof relating to matters of form, time,
place, names of persons and the like, when such an amendment does not
change the theory or theories of the prosecution ..."
and 200.70(2) states that: "An indictment may not be amended in any respect which changes the
theory or theories of the prosecution as reflected in the evidence
before the grand jury which filed it; nor may an indictment or superior
court information be amended for the purpose of curing:
(a) A failure thereof to charge or state an offense; or
(b) Legal insufficiency of the factual allegations; or
(c) A misjoinder of offenses; or
(d) A misjoinder of defendants. "
It appears that changes related to "form, names,time and place" are allowed but amendments related to the charge are not in New York State. The courts have actually specifically prevented a change (or had the allowed amendment and conviction reversed on appeal by the appellate court) to the count itself in People v Boula 2013 NY Slip Op 03875, and People v Cordeiro 2008, People v Perez 1994 and several others.
Could I not argue that changing the violation code to the correct one constitutes a change to the count itself as my plea was a response to 1166B?
For starters, I don't think subparagraph (2) of CPL 100.45 applies to your case. You actually lost me and drifted off way too far when you said "indictment"... and lost me again when you said "prosecutor's information".
Because neither of those documents are likely to exist in your case. Here:
prosecutor's information is defined under CPL 100.10(3) as
3. A "prosecutor`s information" is a written accusation by a district attorney, filed with a local criminal court, either (a) at the direction of a grand jury pursuant to section 190.70, or (b) at the direction of a local criminal court pursuant to section 180.50 or 180.70, or (c) at the district attorney`s own instance pursuant to subdivision two of section 100.50, or (d) at the direction of a superior court pursuant to subdivision one-a of section 210.20, charging one or more persons with the commission of one or more offenses, none of which is a felony. It serves as a basis for the prosecution of a criminal action, but it commences a criminal action only where it results from a grand jury direction issued in a case not previously commenced in a local criminal court.
Furthermore, section 200.10 of CPL defines an indictment as:
S 200.10 Indictment; definition.
An indictment is a written accusation by a grand jury, filed with a superior court, charging a person, or two or more persons jointly, with the commission of a crime, or with the commission of two or more offenses at least one of which is a crime. Except as used in Article 190, the term indictment shall include a superior court information.
My understanding is that you were cited for a simple traffic offense. Far, way far from falling under the definition of an indictment, far from requiring a prosecutor's information or anything related to a charge that was filed by a grand jury, which most likely would be a felony. So while you're hoping these rules would apply in your case, I'm fairly certain you'd be much better off that they don't!
So if neither of those document exist in your case, the provisions of 200.70 do not apply to your case.
CPL 100.45(3) applies, but that only described the court approving an amendment of the simplified information... And it does not cite 200.70...
It seems to me like you're working your case backwards... In other words, you're looking for provisions that may force a dismissal and trying to make those fit your circumstances. Its not going to work that way. Instead, you need to start from ground zero and move forward to see what applies to your particular circumstances. This might possibly lead us back to procedures regarding more serious cases but we have to follow the correct path. However, I am still unsure how its going to change the fact that your case can and more likely will be resolved in a very simple process of an amendment that we have established was permitted under the law. You can argue whatever you choose to argue but if the decision is not up to you, and you can bet that the prosecuting attorney will object to a dismissal that isn't warranted, you are simply wasting time and effort hoping for an end result that is not warranted.
And to put it in as simple a definition as possible I will say this: "you made an error, that resulted in a criminal act, i.e. you broke the law, in the process of citing you, the officer made an error and yet his error, as described under the law, is not a criminal act, nor is it a procedural violation, quite the contrary, there are provisions that address the same issue, they deem it as being negligible because it can be corrected without causing you any additional harm had it not occurred, in other words, it is commonly referred to as a harmless error, and as a result, those provision require the prosecution of your case to continue after a correction of the error.
All while that is happening, you are here trying to imply that your error and his are equal, and therefore the errors should be tossed in the trash, and when that happens, the charge against you goes away and the court must dismiss the entire case. It is not going to happen that way because the steps that must be taken, guide this case in a direction where prosecution must move forward, not stop.
But here, I will get you started... Lets backtrack for a minute... But only to try and establish which documents exist in this case and what procedures they must follow:
You got pulled over and were given an appearance ticket (CPL 150.10)
From that, the officer must also file a "local criminal court accusatory instrument charging (you) the person named in such appearance ticket with the offense specified therein... as required by (CPL 150.50) This document is actually called "simplified information" or more specifically, "simplified traffic information" and is defined under subparagraph (2)(a) of CPL 100.10 as:
2. (a) A "simplified traffic information" is a written accusation by a police officer, or other public servant authorized by law to issue same, filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.
It sounds to me that ^this^ document is filed by the officer in court and it gets the case started, but you don't get a copy of it. You only get the appearance ticket, and pursuant to CPL 100.25 and upon your request, you can get a copy of the "supporting deposition" (defined under CPL 100.20) which must be filed by the officer.
100.20 Supporting deposition; definition, form and content.
A supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.
That is as far as documents go and the related statutes that either define or somehow describe how they fit in the case. The one other Article that might impact how things work out is ARTICLE 170 (170.10 - 170.70) - Proceedings upon Information, Simplified Traffic Information, Prosecutor`s Information and Misdemeanor Complaint from Arraignment to Plea. From reading of that title one can deduce a few statutes that do apply but many others that don't... The ones that apply are compiled in this list:
Thus far you have
CPL 100.10
CPL 100.20
CPL 100.25
CPL 150.10
CPL 150.50
CPL 170.10
CPL 170.40
CPL 170.45 (Which also references CPL 210.45 which takes us back to indictments, so I'll add that at the bottom).
CPL 170.55
CPL 170.60
CPL 210.45
Those are the only applicable statutes I can come up with. If you can find any support to a dismissal motion in them that you think might work in your favor, by all means make it and hope it works.
As for this:
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conanav
Now, CPL 200.70(2) states that : "1. At any time before or during trial, the court may, upon application
of the people and with notice to the defendant and opportunity to be
heard, order the amendment of an indictment with respect to defects,
errors or variances from the proof relating to matters of form, time,
place, names of persons and the like, when such an amendment does not
change the theory or theories of the prosecution ..."
and 200.70(2) states that: "An indictment may not be amended in any respect which changes the
theory or theories of the prosecution as reflected in the evidence
before the grand jury which filed it; nor may an indictment or superior
court information be amended for the purpose of curing:
(a) A failure thereof to charge or state an offense; or
(b) Legal insufficiency of the factual allegations; or
(c) A misjoinder of offenses; or
(d) A misjoinder of defendants. "
It should be noted that you committed the same error to the one the officer committed. What you did was you cited what you numbered as 200.70(2) (which should have been 200.70(1)), and you pasted some statutory language, then you posted 200.70(2) again with different statutory language...
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conanav
It appears that changes related to "form, names,time and place" are allowed but amendments related to the charge are not in New York State.
You are basing that statement on the same reasoning why an indictment cannot be amended... One of the underlying reasons why it cannot and should not, be amended in the same manner as a simplified information is simple... When a grand jury reviews the evidence in a case, and decides that prosecution should proceed, the prosecuting attorney cannot override that decision. Instead, he is obligated by law to proceed with prosecuting the case. In the second citation you provided there, it says: "An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it"... And of course it cannot be amended on that basis, simply because if the grand jury had decided the case on one set of evidence, and that evidence happens to change somehow, the prosecutor cannot guess what the grand jury would have decided, the case would have to get resubmitted to the grand jury along with the new set of evidence and the grand jury gets to decide whether the case should go to trial or not. That is only but one difference but all that should be needed for it not to apply is only one reason.
In your case, the prosecuting attorney can read the content of the supporting deposition, that is where the evidence (i.e. the officer's statement and his observations) and decide whether the case is worthy to get tried, at which point, he will likely notice the error and motion the court to correct it, the court approves his motion in spite of any objection that you might raise (as I am guessing you would have no legal basis to object), and the case will proceed accordingly.
Based on the fact that at the top of this post I explain why I think 200.70 does not apply in your case, there is no need to try and analogize why it does not apply. There is no basis for it being applicable.
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conanav
The courts have actually specifically prevented a change (or had the allowed amendment and conviction reversed on appeal by the appellate court) to the count itself in People v Boula 2013 NY Slip Op 03875, and People v Cordeiro 2008, People v Perez 1994 and several others.
And you'll forgive me for saying no I did not and am not going to read those cases, I am betting that they are all felonies, that all of them had grand jury indictments, or for some other reason that is inconsistent with the reasons in your case, the document could not be amended. But keep in mind that double jeopardy does not attach until the first witness is sworn at trial. And for a felony case that gets dismissed because the indictment had errors in it, the grand jury can reconvene, review the corrected information and so long as there are no statute of limitations issues preventing the filing of another charge (even the same exact one as before), then you can bet and I would hope that felony charges would get filed again.
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conanav
Could I not argue that changing the violation code to the correct one constitutes a change to the count itself as my plea was a response to 1166B?
You can ask for a continuance to prepare for a defense however, and as I said before, the fact that you had the supporting deposition with facts and evidence describing the correct charge, you have no excuse to not be prepared for it instead! After all, you know what you did that led to the citation...
This has certainly turned into a full fledged court in New York state law for me... And at this point, I think we covered the full gamut of possibilities and it seem we are starting to spin our wheels without advancing anymore.. Instead, we keep going back to rehash over the same points.
Please, keep us updated of how things work throughout the process, but I think I've had my fill of New York law. Good luck!