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话题: county话题: nassau话题: movant话题: traffic话题: law
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1 (共1页)
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发帖数: 167
1
County of Nassau v Levine
2010 NY Slip Op 20305 [29 Misc 3d 474]
July 12, 2010
Kluewer, J.
District Court Of Nassau County, First District
Published by New York State Law Reporting Bureau pursuant to Judiciary Law
§ 431.
As corrected through Wednesday, November 17, 2010
[*1]
County of Nassau, Plaintiff,
v
Samuel M. Levine, Defendant.
District Court of Nassau County, First District, July 12, 2010
APPEARANCES OF COUNSEL
Samuel M. Levine, Long Beach, defendant pro se. John Ciampoli, County
Attorney (Andrew R. Scott of counsel), for plaintiff.
{**29 Misc 3d at 475} OPINION OF THE COURT
Susan T. Kluewer, J.
Movant's application for an order dismissing two notices of liability in the
interests of justice is denied.
Movant has received in the mail two notices, one advising that, as owner of
a vehicle bearing New York State license plate number JDGSAM2, he is liable
to pay a fine of $50 because, on October 19, 2009 at 9:31 a.m., the driver
of that vehicle did not stop at a red light. By the other, he is advised
that he is liable to pay a fine of $50 because the driver of the same
vehicle failed to stop at a red light on October 29, 2009 at 9:36 a.m. Each
notice has color photographs of movant's car at an intersection. Each
advises movant that "the recorded images and video of your violation will be
submitted as evidence in the Traffic and Parking Violations Agency
proceeding"; that "[y]ou may view your images and [*2]video online"; that
payment of the fine can be made by mail "in the enclosed envelope,"
evidently addressed to "Nassau County, Red Light Camera Division, P.O. Box
742503, Cincinnati, Ohio"; that payment of the fine—and a $4 convenience
fee—can be made "online"; and that payment of the fine can be made in
person "at the Nassau County Traffic and Parking Violations Agency, 16
Cooper Street, Hempstead, New York." Each also advises that there are "two
ways to contest this violation," i.e., by signing an enclosed coupon and
mailing it to the Nassau County Traffic and Parking Violations Agency (TPVA)
before the "due date" specified on the notice, whereupon "you will be
notified of the date, time and location of your hearing"; or,
"if the basis of your claim is that your vehicle/plate was stolen or the
driver received a ticket from a police officer, you may complete an
affidavit of Non-Responsibility and attach a certified copy of the police
report or a copy of the ticket with the coupon. Your affidavit and
supporting documentation will be reviewed and will result in either
dismissal of this violation or scheduling of an administrative hearing."
Movant requested in each case what is described in the "coupon" he returned
as an "administrative adjudication hearing" to contest his liability. In
each instance, movant received a letter from the "Red Light Camera Division"
of the "Nassau County, TPVA" advising that each matter had been scheduled
for a hearing. Those hearings are currently scheduled for July{**29 Misc 3d
at 476} 14, 2010 at "Nassau County Traffic and Parking Violations Agency."
Defendant now makes application before me, as president of the Board of
Judges of the District Court (see UDCA 2406), for "dismissal" of the notices
of liability. He moves pursuant to CPL 170.40. In support, he asserts that,
on both October 19, 2009 and October 29, 2009, his wife was on her way to
an "important health-related appointment to deal with her serious cancer
problem"; that, on both occasions, she started making a left turn from
northbound Long Beach Road to westbound Daly Boulevard in Oceanside; that
the "newly installed (and defective) Traffic Control Monitoring System (the
Red Light Camera), produced pictures showing our Hyundai grey car going
through the intersection"; that the amber light was lit for only 4.1 seconds
which, he claims, is an "illegally short period"; and that the amber light
was "improperly set by the installing company and their technicians." He
also asserts he will not be able to cross-examine a "live person who
installed and tested the Red Light Camera System"; that his due process
rights are thus violated; that what he characterizes as a "required highway
sign . . . warning about 'Photo Enforced Red Light' was not present"; and
that no written certificate by a technician "as required by the new laws"
was sent to him after he submitted the request for a hearing. Movant next
urges that there is "no law" authorizing the county executive to establish a
"District Court Clerk's Office for the issuance of Notices of Liability or
receipt of mail-in-fines payable to Nassau County to the out-of-state [city]
of Phoenix Arizona [sic]"; that [*3]Nassau County has violated sections
2406 and 2408 of the "Nassau County District Court Act," apparently because,
according to him "[n]o action has been taken by the Board of Judges of the
District Court"; and that, according to him, the judicial hearing officers
who will conduct the hearings on his liability are appointed by the county
executive in violation of article 22 of the Judiciary Law and 22 NYCRR part
122. Finally, movant addresses the criteria governing motions made pursuant
to CPL 170.40 by asserting that "guilt is questionable"; that the operator
and the owner of the vehicle "are outstanding citizens"; that the "minor
traffic fine is not needed"; that the "safety and welfare of the community
are not involved in this case"; that there is "no impact of dismissal on the
public confidence"; that the "respondent is a retired judge"; and that a
fine "is not warranted."
Nassau County, by memorandum of law submitted in opposition, asserts, among
other things, that there is no "authority"{**29 Misc 3d at 477} for movant's
claim that the amber light was on for a period of time that is illegally
short; that the "Manual on Uniform Traffic Control Devices" published by the
Federal Highway Administration provides that the duration of a "yellow
change interval" is to be determined by "using engineering practices"; that
the guidelines provide that a "yellow change interval" should have a
duration of between three and six seconds; that longer intervals should be
used for approaches with higher speeds; and that New York has adopted these
standards. Nassau County further asserts that, since hearsay is permissible
in an administrative proceeding, movant's due process claims are without
merit; that movant is merely speculating that he will not be provided with
the requisite technician's certificate at the time of the hearing; and that
there is no prohibition against delegating to an entity outside New York
some of the tasks associated with the red light camera program. Insofar as
movant claims that it has violated sections 2406 and 2408 of the "Nassau
County District Court Act," Nassau County points out that that Act was
repealed in 1963, but it proceeds to make the erroneous argument that there
is no corresponding section in the Uniform District Court Act (but see
Uniform Dist Ct Act, art XXIV, § 2401 et seq.; see also Nassau County
Charter § 2408), and it thus concludes that movant's claims in this regard
are "without merit." Nassau County then asserts that movant's remaining
claims, including those concerning the appointment of judicial hearing
officers, have been resolved against movant in a matter entitled Levine v
Suozzi (2010 NY Slip Op 31008[U] [Sup Ct, Nassau County, Apr. 12, 2010,
Lally, J.]), litigation by which movant sought, among other things, a
declaration that the county executive lacked authority to appoint judicial
hearing officers to determine matters pending before the TPVA, and wherein
the court dismissed movant's complaint pursuant to CPLR 3211 (a) (5) and (7)
, ruling, among other things, that the delegation of authority to the TPVA
includes the authority to [*4]appoint judicial hearing officers, and that
movant's claims that the county executive's "designation of [judicial
hearing officers] at the TPVA violated the State's statutory scheme fails as
a matter of law." (2010 NY Slip Op 31008[U], *7.) Finally, referring to a
nationwide study of fatal crashes at traffic signals, Nassau County notes
that passing a red traffic light is a public safety hazard, and that there
is nothing "minor" about the violation. It urges that granting an
application premised, in part, on movant's invocation of his status as a
retired judge{**29 Misc 3d at 478} would adversely affect the public's
confidence in a system that is not supposed to favor the politically
connected, and that, in any event, dismissal at this stage "would be
contrary to the policy stated on its web [s]ite [and on the notice of
liability]" that a violator cannot under the experimental program at issue
plead to a lesser offense or pay a fine of less than $50.
Movant in reply makes note of the legislation establishing the Board of
Judges of the District Court, and, citing the Court of Appeals' recognition
of its existence (see Matter of Dolce v Nassau County Traffic & Parking
Violations Agency, 7 NY3d 492 [2006]), he repeats his claims that it is
illegal for the county executive to appoint judicial hearing officers. He
further complains, in effect, that there is a violation of the Separation of
Powers Clauses of the State and Federal Constitutions because the county
executive appoints and thus controls the judicial hearing officers, appoints
and thus controls the executive director of TPVA, and thus indirectly
appoints and also controls the prosecutors. He additionally complains that,
because of what he terms "ex parte" communications between TPVA's executive
director—also a retired judge—and the county attorney, he cannot get a
fair hearing under the current system. Finally, he asserts that Levine v
Suozzi was wrongly decided and that, in any event, it is not "res judicata"
as to the claims made in this case.
In March 2009, the state legislature enacted Vehicle and Traffic Law § 1111
-b to authorize Nassau County to adopt a local law establishing a "
demonstration program imposing monetary liability on the owner of a vehicle
for failure of the operator thereof" to stop at a red light as required by
Vehicle and Traffic Law § 1111 (d) (Vehicle and Traffic Law § 1111-b [a] [
1], as added by L 2009, ch 19, § 3). The legislation thus authorizes
installation of what are commonly referred to as "red light cameras" at no
more than 50 intersections within the county, and it designates the
requirements the County must abide by in imposing liability on owners of
vehicles that are driven through red lights. These include: that the owner
is liable for the penalty imposed if the vehicle was used or operated with
the owner's express or implied permission; that no penalty may be imposed on
the owner where the operator "has been convicted of the underlying
violation of" Vehicle and Traffic Law § 1111 (d) (Vehicle and Traffic Law
§ 1111-b [b]); that a certificate "sworn to or affirmed" by a technician
employed by Nassau County, based on inspection of a "traffic-control signal
photo violation-monitoring system, shall be prima facie evidence of the
facts{**29 Misc 3d at 479} contained therein" (id. § 1111-b [d]); that the
photographs, videotapes or other recorded images "shall be available for
inspection in [*5]any proceeding to adjudicate the liability" for the
violation (id.); that the owner is liable for "monetary penalties" set forth
in the local law enacted in conjunction with the state legislation, which
penalties shall not exceed $50 for each offense, although an additional
penalty of $25 on account of failure to timely respond may also be provided
for in the local law (id. § 1111-b [e]); that imposition of liability "
shall not be deemed a conviction as an operator and shall not be made part
of the operating record of the person upon whom such liability is imposed" (
id. § 1111-b [f]); that a notice of liability containing statutorily
specified information—which notice shall be prepared by Nassau County "or
by any other entity authorized by such county to prepare and mail such
notification"—shall be sent by first class mail to each person alleged to
be the owner of the vehicle (id. § 1111-b [g] [1], [4]); and that, in
addition to lack of consent to operation, or conviction for violation of
Vehicle and Traffic Law § 1111 (d), malfunction of the "traffic-control
indications" device is a defense to liability under the program (id. § 1111
-b [o]). The legislature also at that time amended Vehicle and Traffic Law
§ 1809 to exempt those on whom liability is imposed pursuant to this
program from assessment of surcharges and crime victim fees that are imposed
on persons convicted of violating provisions of the Vehicle and Traffic Law
. Finally, it dictated that the "[a]djudication of the liability imposed
upon owners by this section shall be by the court having jurisdiction over
traffic infractions." (Vehicle and Traffic Law § 1111-b [h].) Pursuant to
this legislation, Nassau County enacted Local Law No. 12-2009 of County of
Nassau in June 2009. In addition to adopting the requirements noted above,
the local law provides for a fine of $50 for each violation, and for an
additional penalty of $25 for failure to respond to the notice of liability
within 42 days of its mailing (Local Law 12-2009, § 4 [a]). It further
provides that adjudication of liability "shall be by the Nassau County
Traffic and Parking Violations Agency, as a branch of the District Court of
Nassau County." (Local Law 12-2009, § 6.)
Nassau County's claim that, in effect, article XXIV of the Uniform District
Court Act does not exist, and that, therefore, there is no Board of Judges
of the District Court, is simply wrong (cf. Matter of Dolce v Nassau County
Traffic & Parking Violations Agency, supra). Indeed, the entirety of article
XXIV is{**29 Misc 3d at 480} set forth in McKinney's Consolidated Laws of
New York, is designated therein as "supplemental" to the Uniform District
Court Act, and is enabled by appropriate legislation adopted by Nassau
County (see Nassau County Charter § 2401 et seq.). Nassau County's implicit
argument that no judge of the District Court has jurisdiction over any of
the claims movant makes in this matter is thus also wrong (cf. id.). To the
extent, however, that I have jurisdiction (but see CPLR 3001) to determine
movant's claim that Nassau County violated UDCA 2408 when it enacted the
legislation establishing the "red light camera" demonstration program, that
claim is also ill-founded.
Among the statutorily specified but nonetheless limited functions of the
Board of Judges of the District Court is the establishment, except in
certain cases not pertinent here, of procedures governing the payment of
fines by persons accused of violating any provision of any law, ordinance,
rule or regulation [*6]relating to vehicular or pedestrian traffic, without
appearing in person (see UDCA 2408; see also Nassau County Charter § 2408).
It is thus its function to prescribe, within the legislatively specified
minimum and maximum, the fine to be paid, to prescribe the form of the "
summons" to be used, to prescribe the manner in which the plea of guilty
shall be made, and to prescribe the manner in which the money shall be paid
where a person accused of violating rules, regulations and ordinances
governing pedestrian and vehicular traffic can, and elects to, plead guilty
without appearing in person (id.). In conformity with that function, and in
contemplation of the implementation of the demonstration program, on June 12
, 2009, TPVA personnel made inquiry as to whether Board of Judges approval,
either of the notice of liability, or of the amount of the fine to be paid
pursuant to the demonstration program, was required. In accordance with the
rules established by the Board of Judges, I caused public notice to be
posted advising that this issue, among others, would be on the agenda of a
public meeting to be conducted on August 18, 2009. At that public meeting,
the Board of Judges voted to answer the TPVA inquiry in the negative (see
minutes, Aug. 18, 2009 meeting of Nassau County Bd of Judges of Dist Ct). It
did so because UDCA 2408 contemplates that the Board of Judges set
procedures only in instances where persons who are charged by "summons"—i.e
., a simplified traffic information issued by a police officer in
conjunction with an appearance ticket (see UDCA 2408 [4]; see also CPL art
150; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book{**29
Misc 3d at 481} 11A, CPL 150.10)—elect to plead guilty without appearing in
person; because TPVA is a "hybrid" agency that has both adjudicatory and
prosecutorial functions, the latter of which is now under the oversight of
the county executive, the former of which remains with the District Court (
see Matter of Dolce v Nassau County Traffic & Parking Violations Agency, 7
NY3d at 498); because there is no range of fines, but instead one $50
penalty that is uniformly imposed; and because the notice of liability is
not issued by a police officer and is not an accusatory instrument (see
minutes, Aug. 18, 2009 meeting of Nassau County Bd of Judges of Dist Ct). As
for movant's claim that he cannot receive a fair hearing because of what he
calls "ex parte" communications between TPVA's executive director and the
county attorney, it is similarly misguided. While the current executive
director was once a judge, he no longer serves in that capacity and he will
not determine movant's liability for the $50 penalty movant here seeks to
avoid (see General Municipal Law § 374 [b]). Moreover, TPVA's executive
director answers to the county executive and is paid by the County (id.; see
also General Municipal Law § 374 [c]). He is thus, in my view, entitled,
if not obligated, to consult with the attorney who represents him in his
current, official capacity (see Nassau County Charter art XI). As for movant
's challenge to what he asserts is the improper appointment of judicial
hearing officers to TPVA by the county executive, he in effect seeks a
declaration that the current system [*7]for appointing them is illegal.
Apart from the fact that there is no statutory authority to support his
contention that judicial hearing officers are in fact appointed by the
county executive (cf. General Municipal Law § 374; see CPL 350.20; Vehicle
and Traffic Law § 1690), apart from the fact that the Court of Appeals has
noted that "judicial hearing officers, who preside over TPVA matters,
continue to be appointed by the Nassau County Administrative Judge" (see
Matter of Dolce v Nassau County Traffic & Parking Violations Agency, 7 NY3d
at 498-499), and apart from the fact that it appears that movant is
collaterally estopped from raising this particular claim (see Levine v
Suozzi, supra; see also Ryan v New York Tel. Co., 62 NY2d 494 [1984]), I am
without jurisdiction to issue a declaration (cf. CPLR 3001; see also Dilbert
's Quality Supermarkets v Chassen, 32 Misc 2d 670 [Sup Ct, Nassau County
1961, Farley, J.]).
Turning to movant's more focused claims, I am aware of no legal requirement,
and movant cites none, that motorists be warned that a particular
intersection is watched by a "red light{**29 Misc 3d at 482} camera." I am
also unaware of any legal requirement, and movant cites none, that he be
supplied—before the hearing on his liability commences—with the
certificate "sworn to or affirmed" by a technician employed by Nassau County
, which, by statute, can serve as prima facie evidence "of the facts
contained therein." And such claims as that the yellow light lasted for an
illegally short period of time, or that the light otherwise malfunctioned,
are recognized defenses more properly raised at the hearing on the merits of
Nassau County's claim (see Vehicle and Traffic Law § 1111-b [o]). As for
movant's claim that his due process rights are violated because he will not
be able to cross-examine a live witness, and assuming that claim to be
correct, inasmuch as he faces neither criminal conviction nor conviction for
any provision of the Vehicle and Traffic Law, his assertion is without
merit (cf. Matter of A.J. & Taylor Rest. v New York State Liq. Auth., 214
AD2d 727 [2d Dept 1995]; Crawford v Washington, 541 US 36 [2004]). And to
the extent that, by this and other claims, movant purports to challenge the
statutory scheme governing "red light cameras" as unconstitutional, his
application is procedurally defective as he has failed to give notice of it
to the attorney general (see CPLR 1012 [b] [1]).
Movant's arguments thus provide no basis for dismissal at this stage of the
proceedings. Indeed, turning to the discrete procedural context in which he
couches the entirety of his many-faceted application (see CPL 170.40),
movant is advised that the extraordinary relief of dismissal in the
interests of justice is available in criminal cases commenced by the filing
of an accusatory instrument (see CPL 170.30 [1] [g]). Since a notice of
liability is not an accusatory instrument (see CPL 100.10), the ultimate
relief movant seeks is simply not available here.
I have considered movant's remaining contentions and find them to be without
merit.
1 (共1页)
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话题: county话题: nassau话题: movant话题: traffic话题: law