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  1. #4
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    Default Re: Ticket for an Illegal Left Turn, with the Wrong Statute Listed on the Ticket

    Quote Quoting conanav
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    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.

    Quote Quoting conanav
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    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.

    Quote Quoting conanav
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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.

    Quote Quoting conanav
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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!

    Quote Quoting conanav
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    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.

    Quote Quoting conanav
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    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:

    Quote Quoting conanav
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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".
    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.

    Quote Quoting conanav
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    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.

    Quote Quoting conanav
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    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....

    Quote Quoting conanav
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    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).

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