![]() ![]() The defendant moved to dismiss the new ticket, citing case law from the Appellate Term for the 9th and 10th Judicial Districts. After walking out of the courtroom, the prosecutor personally served the defendant with a new simplified traffic information and a supporting deposition. The hearing officer granted the motion to dismiss. ![]() Later that year, the parties appeared before a judicial hearing officer. However, the officer failed to file the supporting deposition within the time allotted by the Criminal Procedure Law.Īs such, the defendant moved to dismiss the ticket. The supporting deposition would set forth the officer’s factual allegations for issuing the ticket. Then, she pled not guilty and requested a supporting deposition. In 2013, the defendant received a traffic ticket for failing to stop at a stop sign. Here, we discuss the Court of Appeals ruling on this. ![]() Epakchi, the District Attorney opposed this rule. One appellate term court adopted a local rule whereby the District Attorney couldn’t re-prosecute a defendant by filing a new simplified traffic information after the original was dismissed for facial insufficiency for failure to provide a requested supporting deposition. The holdings by these courts develop into local rules which are not necessarily applicable in other jurisdictions. The ruling was not fair and should be overturned.In New York, there are various levels of courts – local courts, supreme courts, appellate courts, and the Court of Appeals. In this particular instance, although the appeal will take MANY additional hours, I may do it pro bono, as my client is not in a position to fund it. But that can result in more lawyers fees and court expenses. The defendant certainly has the right to an interlocutory appeal from a decision such as this. What are the options when this happens? Appeal. This was after he signed an Order limiting the time for production, an Order that was 20 days overdue. To make matters worse, after making my motion to dismiss, the judge would not set a new time limit to produce discovery. Just today I appeared in a municipal court (name omitted) where this happened. ![]() This is also why I get SO incredibly frustrated when a judge signs one of these Orders only to wimp out on enforcing the Order, essentially assisting the state in the production of discovery (which is strictly barred) by giving the state more time. Accordingly, I make it a habit to always file a Holup motion early on in the case to set an appropriate time limit for the state to produce the discovery. I know this to be the case because I practice nothing but criminal and traffic defense law (and some immigration). Multiple appearances by counsel and litigant can lead to skyrocketing legal fees, transportation cost, expert witness fees, waste of time, and can result in prejudice to either party. This is an important decision because it recognizes that the discovery process is probably the number one reasons why court cases drag on and on and on. However, the Court in Holup held that if the appropriate motion is filed giving notice the your adversary that discovery has not been received, with a request that a time be set by the court for the production of said discovery, then a failure to do so after the time allotted may lead to a dismissal of the charges upon application by counsel. Ordinarily, a court should not dismiss a case for failure to produce discovery. In State v Holup, the Superior Court of New Jersey examined this issue and proscribed the proper procedure for counsel to follow when such a situation arises. The question is what happens when that discovery is requested but not provided. In addition, the defendant can always ask for and is entitled to relevant discovery. The rules of court and case law enumerate specific items that should be provided to a defendant in a prosecution. Additionally, a defendant is entitled to exculpatory evidence. A such, a defendant is entitled to information that the state plans to rely upon. In most cases, including DWI and drug charges, the state will rely upon police reports, lab certificates of analysis, chain of custody documents, alcotest readings, etc. Remember, the pertinent discovery must be requested in the proper manner proscribed by the rules. Rule 7:7-7provides the defendant with the absolute right to receive discovery consistent with the rule. One of the most important aspects of a municipal court criminal or traffic matter is the discovery process. ![]()
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