(Ithaca DWI)Behind the Curtain: What just got Waived at your first court appearance???

What does it mean when your lawyer says, "We waive the reading of the rights and charges" ???

(image courtesy www.legalteamusa.net)

What does WAIVE mean?  =  to give something up

So, if you've ever been to a first appearance in criminal court, you will hear every attorney say something like "we waive reading" or "we waive reading of the rights and charges."  This is so common for reasons of streamlining the appearance for the Judge, the client, and all the attorneys waiting to be seen.  So it begs the question...what RIGHTS exactly are we waiving at the first appearance???

Well, it depends on what you're charged with... the rights differ depending on if you're charged with a traffic infraction/non-criminal violation, a misdemeanor or a felony--or a MAJOR felony (like murder). Unless you're charged with something very serious like crimes of violence against another person...it is customary in NY courts to waive reading of the CHARGES.  If you're charged with a lesser felony, it is still customary to waive reading of the Charges, but not the RIGHTS necessarily.  

If you're charged with a misdemeanor or a traffic infraction/violation, it is customary to waive reading of BOTH RIGHTS and CHARGES.  (you're not waiving the rights themselves)

So if you waive reading of your rights by the judge at the first appearance, what rights are we talking about?   [governed by Criminal Procedure Law, s. 170.10]

1.  Right to Counsel at arraignment and every stage of criminal case.  The Court is obligated to tell you that you are entitled to a lawyer at arraignment for a criminal charge (i.e. a misdemeanor).  They are also obligated to tell you that your case can be adjourned so you can find a lawyer or call a family member to help you find a lawyer.  If you cannot afford a lawyer, the court is obligated to tell you that one can be appointed to represent you.  

2.  The Court is obligated to make you aware of the effect of pleading guilty to any traffic ticket or traffic-related crime will have on your driving privileges in NY.  The Judge is also obligated to tell you that if you plead guilty it is the same as being convicted following a trial.  

3.  In cases where the accusatory instrument is a simplified traffic information, the Court is obligated to tell you that you may request a supporting deposition.  This is for traffic tickets mostly.  [CPL s.100.25]

4.  In cases where the accusatory instrument is a misdemeanor complaint, you have the right to either waive your right to be prosecuted by a Prosecutor's Information (a more formal instrument) or insist upon the prosecutor filing an information.  The Court is obligated to tell you this.  Unless the right is waived.  Even so, the Court cannot allow you to plead guilty to a misdemeanor complaint without your consent to waive the information. 

5.  For defendants summonsed to arraignment or given appearance tickets, the rights are usually written somewhere on the ticket and this constitutes compliance with the reading of the rights.  

*6th Amendment to the United States Constitution (Federal protections) give ADDITIONAL RIGHTS on top of the New York laws...

6.  Right to a trial

7.  Right to present evidence

8.  Right to challenge evidence

9.  Right to bring witnesses

10.  Right to confront witnesses

--SUMMARY THOUGHTS--

Attorneys often waive reading of the rights and charges to save time and keep good will with the prosecutor at the start of the case.  Also, the client usually does not want to have the list of charges read off to the general public because they can be embarassing. 

However, it is important to understand the rights because they can sometimes be used as leverage in getting a better deal for the client.     

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

(Ithaca DWI) Probable Cause: the Right to Stop a Car in New York

The Police Officer's RIGHT to STOP your car in NY

(image courtesy flickr.com)

BIG QUESTION:  When does a NY cop have the right to pull your over??? 

Well, they have rights to pull you over for all sorts of reasons.  Here are some of the biggest ones...

1.  The Court of Appeals (the highest Court in NY) has decided that the stop of a vehicle is lawful when an officer has probable cause to believe that an individual has violated the Vehicle and Traffic Law.   People v. Robinson (decided in 2001).  

What's definition of "Probable Cause" :  "reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely that such offense was committed and that such person committed it."  CPL s. 70.10(2).  See also People v. Russell (2005), CPL s. 140.10

That's a MOUTHFUL. So, what's that mean?  

Basically, if an officer SEES you commit any traffic infraction (from not using a turn signal, to going out of your lane, to speeding) then they have the necessary PROBABLE CAUSE to stop your car. 

[If they pull you over for an Equipment Violation (like a tail light out or a noisy muffler) it can be a little more difficult to prove probable cause because the violation may be harder to discover.]

This still counts even if they're really after you for something else...like drunk driving.  

2.  An officer may stop a car if a PASSENGER in the car was just seen driving a different car and committed a traffic violation.  People v. Sluszka (2005)  [seeing you change cars is considered like a continuation of your initial driving.

3.  They can stop you if they have reasonable suspicion of criminal activity (i.e. a misdemeanor or a felony).   Reasonable suspicion is: "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand."  People v. Cantor (1975)

--SUMMARY THOUGHTS--

It's pretty easy for a police officer to lawfully stop you while driving a car.  They just have to follow you for a little bit and chances are, you'll do some little thing that violates the traffic law.  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi