February 22, 2012, by Tilem & Associates

When one is convicted for Driving While Intoxicated [VTL 1192] in New York, probation is a possibility. As most experienced criminal defense lawyers know, when one is sentenced to probation, the court usually imposes fairly standard probation conditions which are provided to the defendant in writing at the time of sentence. The defendant must sign these conditions in court at the time he or she is sentenced. When the conviction is for DWI, courts often impose “Driving While Intoxicated Probation Conditions” in addition to the standard probation conditions.

The New York State Criminal Procedure Law requires the sentencing court to specify any sentencing conditions and provide the defendant with a written copy of any conditions of probation at the time of sentencing. More specifically, where “the court pronounces a sentence of probation . . . . it must specify as part of the sentence the conditions to be complied with. Where the sentence is one of probation, the defendant must be given a written copy of the conditions at the time sentence is imposed.” CPL § 410.10(1).

The New York State Penal Law also mandates that the sentencing court specify the conditions a probationer must comply with. For example, Penal Law § 65.00(2) states “When a person is sentenced to a period of probation the court shall . . . . specify, in accordance with section 65.10, the conditions to be complied with.” see also Penal Law § 65.10(1)(“The conditions of probation . . . . shall be such as the court, in its discretion, deems reasonably necessary . . .”).
Probation conditions imposed as part of the sentence must be clearly stated leaving nothing to doubt. “It is fundamental that such conditions should be sufficiently clear and explicit so that both the defendant and the probation officer will have notice thereof.” People v. Turner, 27 A.D.2d 141 at 145 (4th Dept. 1967) see also People ex rel. Benacquista v. Blanchard 267 A.D. 1018 (3rd Dept. 1944)(“The conditions of probation . . . . must be determined by the court and imposed upon the defendant in a manner to give him due notice thereof.”).

For example, if a defendant convicted of Driving While Intoxicated (whether by plea bargain or trial verdict) as a misdemeanor is sentenced to probation, in addition, his or her license will be revoked for a least one year. When the defendant reapplies for his or her driver’s license, the Department of Motor Vehicles, not the original sentencing court, decides whether to reissue the license. In fact, the Department of Motor Vehicles can terminate any court imposed suspension or revocation in certain circumstances where the defendant completes the Drinking Driver Program.

However, the court can undermine the DMV’s authority to re-issue the defendant’s license or terminate the revocation early by adding a probation condition that prohibits the defendant from re-applying for his or her driver’s license for the duration of the probationary period or until cleared to reapply by probation. This means that a defendant could be restricted from all driving for the entire three year probationary period.

But, as explained above, probation conditions must be specified by the court and provided to the defendant in writing at the time of sentencing. If the court fails to do so, the Department of Probation cannot order the defendant to sign any conditions of probation at a later date. The Department of Probation is bound by the conditions imposed by the court. Furthermore, the sentencing judge can’t sign and add probation conditions at a later time after the defendant has been sentenced and is no longer in the court. In other words, if the court forgets to impose certain probation conditions, it can’t simply try to “correct” the error clerically by signing and adding additional conditions. If the original sentence was lawful, the court is without authority to alter it. The Department of Probation should not have any conditions of probation signed by the judge that were not provided to the defendant at the time of sentencing.

Requirement That Sentencing Court Provide Written Copy Of Probation
Conditions At Time Of Sentencing Not Strictly Enforced IF Court Explains
Conditions Verbally At Time of Sentencing

The Appellate Division, Fourth Department has apparently carved out an exception to CPL 410.10(1) by holding that a sentencing court need not strictly comply with the requirement that a defendant be provided with a written copy of the conditions of probation at the time of sentencing. However, this exception applies only if the defendant is told of the conditions at the time of sentencing. People v. Bernstein, 163 A.D.2d 842, 559 N.Y.S.2d 71 (4th Dept. 1990).

The Appellate Division, Third Department has also held that that a sentence need not be vacated where a sentencing court fails to provide a defendant with a written copy of the probation conditions at the time of sentencing if the sentencing court explains the conditions to the defendant at the time of sentencing. People v. Nazarian, 150 A.D.2d 923, 541 N.Y.S.2d 262 (3rd Dept. 1989). Indeed, in Nazarian, the sentencing court actually read the probation conditions into the record.



December 26, 2011, by Peter Howard Tilem

Some big changes are coming to the Town Court of Greenburgh in 2012 and they should have a huge effect on the way the Court handles everything from Speeding Tickets to DWI's. Firstly, as a result of their loss in the primary long time Town Judge's Sandra Forster and Doris Friedman will no longer be Judges in the Town of Greenburgh Court. Two new judges will take their place. In addition, it was announced last month that Regina Hill, the Court Administrator brought in to improve Court operations in Greenburgh would also be stepping down.

Three Judges were sworn in on December 23, 2011 by New York Court of Appeals Associate Judge Theodore Jones. The new Judges as of January 1, 2012 will be Arlene Gordon-Oliver, Walter Rivera and Delores Scott Brathwaite. Judge Arlene Gordon-Oliver is the only returning judge having served in the Town of Greenburgh Court since 2007. In addition, the search continues for a replacement for Regina Hill.

One of the changes that is expected in 2012 will be another night court session in the Town of Greenburgh. One night per week was already added and another one is expected to be added soon.

The Newly elected Judges are widely expected to add a certain level of professionalism to the Court. As was widely reported in the media and on the blogosphere, Judges Forster and Friedman got themselves in a little bit of trouble when it was revealed that a client in the Greenburgh Drug Court had her rights violated. Judge Rivera has an impressive resume that includes impressive academic credentials and extensive work experience in both the private and public sector.

Judge Braithwaite similarly has impressive credentials which includes a job as executive director of the Westchester Human Rights Commission and time on the Town Planning Board.

The Greenburgh Town Court has been plagued by problems over the years that includes in fighting among the Judges, and lack of financial oversight over money collected as far back as 2004. Even after the initial report and changes a Court audit in 2010 found lack of financial oversight over bail money. More recently, 100,000 old tickets were discovered that had not been dealt with potentially costing the Town and the State millions in fine dollars. This most recent discovery is in all likelihood what caused the democratic party to ultimately withdraw support for the incumbent judges.

While big changes are expected in the Greenburgh Court. the changes are supposed to me for the better. The Town prosecutor who handles traffic tickets such as speeding and tailgating in Greenburgh is not expected to change. Nor are the Assistant District Attorney's who handle the DWI and criminal offenses in Greenburgh likely to change immediately. So the ultimate disposition of cases will likely not change dramatically.


Town of Cortlandt New York – Speeding Ticket Defense Information

June 16, 2011, by Tilem & Associates

Have you been cited for speeding (VTL 1180) or any other traffic infraction in the Town of Cortlandt in Westchester County, New York and are considering retaining an attorney to represent you in court? The lawyers at Tilem & Associates have successfully handled thousands of traffic ticket cases throughout the State of New York - including the Town of Cortlandt Justice Court.

From now until August 31, 2011, Tilem & Associates will cover any traffic infraction except leaving the scene of an incident or Driving While Ability Impaired (VTL 1192(1)) returnable to any local criminal court in Westchester County, Rockland County, Broome County and St. Lawrence County. Tilem & Associates handles traffic infractions throughout the entire State of New York at competitive prices but the 2011 Summer Special $195 price only applies to the aforementioned counties. Terms apply and you should read them.

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Buchanan Village Court – Speeding Ticket Information

June 13, 2011, by Tilem & Associates

Have you been charged with speeding, passing a red-light, unsafe lane change or other traffic infraction in Buchanan, New York and want to be represented by experienced and competent attorneys at a reasonable fee? The lawyers at Tilem & Associates have handled thousands of traffic tickets in courts throughout New York State including the Buchanan Village Court. Not only can Tilem & Associates provide you with experienced representation on your speeding ticket (or any other traffic infraction), they are also affordable.

Until August 31, 2011, Tilem & Associates is offering a Summer Special price of just $195.00 for representation on any traffic ticket charging traffic infractions in any court located in Westchester County, Rockland County, Broome County and St. Lawrence County. This Summer Special $195.00 price applies to all traffic infractions except Leaving the Scene of an Incident or Driving While Ability Impaired although our fees are very reasonable for those charges as well. Terms and Conditions apply and you must read them. Also, you must mention this Summer Special $195.00 when you first call us. See the Terms and Conditions of this offer.

Keep in mind, just about any attorney can handle traffic tickets (and plenty are doing so). Being the busiest and “best” traffic court attorney has very little to do with one’s legal skills and everything to do with one’s internet marking skills. Unless you are unlucky enough to retain a total buffoon of an attorney (and there are a few out there), you will most likely get just about the same plea bargain deal no matter which attorney you hire. There is no “Johnny Cochran” roaming around traffic court.

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What to Expect When at the City of Yonkers Traffic Court

May 31, 2011, by Tilem & Associates

If you received a traffic ticket for speeding, passing a red-light, stop-sign, etc, in the City of Yonkers and pleaded not guilty, you will receive conference notice from the court instructing you to appear at the court on a particular day to meet with the prosecutor to discuss a possible plea bargain whereby the charge will be reduced in return for you pleading guilty. Our attorneys at Tilem & Associates can represent you in Yonkers and our lawyers can appear at this conference for you. In most cases, you do not have to come to court.

Generally traffic infractions in Yonkers are prosecuted by the officer who issued the summons or another officer from the same law enforcement agency. Several law enforcement agencies issue tickets within the City of Yonkers including the Yonkers Police Department, Westchester County Police Department and the New York State Police. Therefore, you can expect to meet with a police officer as opposed to a district attorney or city attorney as you might in other jurisdictions.

The City Court of Yonkers is located at 100 So. Broadway, Yonkers, NY 10701. The number for traffic matters is 914-831-6910. There is a parking lot for the courthouse but it fills quickly so get there early or expect to park on the street. Street parking is metered so bring change; tickets can be as much as $40.00. When you enter the courthouse you will pass through a metal detector and you might be further searched. Bags, pocketbooks, briefcases, etc will be searched so leave your handguns and controlled substances at home.

After you pass through security you should take the elevator to the second floor. Make a right when you come out of the elevator and traffic court is held in the very first courtroom. You will see police officers outside the courtroom. They will either call your name or you can politely approach the officer who wrote your ticket or an officer from the same agency. In other words, many times the Westchester County Police send one officer to negotiate all County Police tickets for that particular day. State Troopers are not allowed to plea bargain so if your ticket was issued by a State Trooper the Yonkers’ Police Officer who runs the courtroom will often make you an offer when your case is called.

After you speak with the officer you should take a seat in the courtroom. If you haven’t spoken with the officer before the judge enters the courtroom and the clerk calls the calendar be sure to get in the courtroom and sit down. Take off any hats and be sure to shut your cell-phone. The clerk will then call the calendar. When you hear your name you should indicate you are present. The clerk will tell you what you should say when your name is called. If you haven’t already negotiate an agreeable plea bargain before your case is called, the officer who runs the traffic court will usually make you an offer when your case is called. If you agree to a deal that day, the Judge will impose a fine and any mandatory surcharges and usually agrees to requests for some time to pay. If you are given time to pay, be sure to timely pay the fine and surcharge; otherwise you face suspension of your license.

It is important that you have some idea of the charge you are facing, how many points it carries, what your driving record is, what law enforcement agency issued the ticket and how many points the reduced charge the officer offers carries. These are important factors that all affect the negotiation process. The attorneys at Tilem & Associates have handled hundreds of tickets in the City Court of Yonkers. In fact, our lawyers have about a 95% success rate at getting reductions or dismissal on Yonkers’ traffic infraction cases. This is not a guarantee and our past performance does not mean we will obtain a similar result for you. However, the truth is, we are in this court on a regular basis; we know the plea policies of many of the officers; we know what plea deals some judges won’t accept; we know how many points each type of violation carries; and if necessary, we are capable of taking your case to trial and providing you with a meaningful defense while the reality is, you most likely would have no idea what to do if your case went to trial. To be clear however, in most traffic cases, unless there are other collateral issues involved (accident, no plea offer, etc), motorists should try to resolve their traffic tickets with a plea bargain because no matter how good your attorney may be in court, most judges will simply not rule against the police in traffic court.

Your driver’s license is a cherished property right. Tickets and points can result in the loss of that right as well as increases in your automobile insurance. Some of you rely on your driver’s license for your job; your license feed your family and puts a roof over their head. Why go to court alone? You should consider retaining an attorney.

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Yonkers Speeding Ticket Defense Information

May 29, 2011, by Tilem & Associates

Tilem & Associates can represent you on a Yonkers traffic infraction from start to finish. We can enter your not guilty plea, appear at your conference, negotiate your deal or have a trial, secure you time to pay any fines and surcharges (usually two week in Yonkers) and send you a closing letter informing you of the outcome, fine amount (if any) when the fine is due and where to mail it. All this for a flat fee of $195.00 (Offer Expires August 31, 2011 – See Terms).

While we make no guarantees and our past performance does not mean we can obtain a favorable result in your case, the truth is, we have handled hundreds of tickets in Yonkers and we have about a 95% success rate at obtaining reductions or dismissals.

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Greenburgh Speeding Ticket Information

May 19, 2011, by Tilem & Associates

The Town of Greenburgh town attorney currently prosecutes traffic tickets for the Town of Greenburgh. Typically those who plead not guilty receive a conference notice instructing them to appear on a certain date to discuss the ticket with the town attorney and the possibility of a plea bargain whereby the defendant agrees to waive his or her right to trial and plead guilty to a reduced charge. We can appear for you at this conference and attempt to negotiate a reduction for you. Most times you will not have to appear with us. For a $195.00 flat fee, we will appear on your behalf and handle the ticket in your absence. You need not miss work or school.

While we can’t guarantee a favorable outcome, and we may lose your case, we have been successful at obtaining reductions or dismissals on Greenburgh traffic infraction cases about 98% of the time.

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May 17, 2011, by Peter Howard Tilem

Have you received a traffic ticket for speeding or any other traffic infraction in the Village of Ardsley in New York? The attorneys at Tilem & Associates can provide you with exceptional and experienced representation for just $195.00. In most cases you won’t even have to appear in court. Our lawyers have represented those charged with speeding and other traffic infractions throughout most jurisdictions in New York State including the Village of Ardsley.

While we make no guarantees and our past performance does not guarantee a particular outcome in your case, we have been able to secure a reduction or a dismissal in about 95% of the traffic infraction cases (such as speeding) that we have handled in the Ardsley Village Court.



April 3, 2011, by Tilem & Associates

You are driving on I 287 in Greenburgh, New York, when you are stopped by a New York State Trooper who issues you a ticket for speeding. At a subsequent conference, for whatever reason, you (or your attorney) are unable to reach an agreement with the prosecutor on a plea bargain and your case is scheduled for trial.

At trial, your lawyer argues that the Trooper has not produced sufficient proof establishing that the radar unit he used to determine the speed of your vehicle was in proper working order. The judge agrees with your attorney and excludes all radar evidence from your trial. You win, right? Without any radar evidence or evidence that the Trooper paced your vehicle, how can the prosecution prove you were speeding beyond a reasonable doubt? Case over – not guilty. Wrong.

In New York, like many other states, you can be convicted of speeding based solely on the officer’s visual estimate of the speed of your vehicle, uncorroborated by devices such as radar or laser. People v. Olsen, 22 N.Y.2d 230 (1968). Prior to the Olsen decision, such visual estimate opinion evidence alone however, was insufficient for conviction. People v. Magri, 3 N.Y.2d 562 (1958).

In Magri, the accuracy of the radar equipment used to measure the defendant’s speed was not proven. For that reason, the Court held that the radar evidence of Magri's speed was, without more, insufficient proof of the speeding charge. However, the Court upheld Magri’s conviction anyway since there was additional competent proof in “the testimony of the two qualified and experienced police officers, who had adequate opportunity to observe defendant's vehicle as it approached the radar car.” Id at 367. In other words, Magri established that the prosecution need not establish that the radar, laser, speedometer or other speed measuring device was in proper working order if there is opinion testimony from a qualified officer as to defendant’s speed corroborating the reading on the speed measuring device.

Under the holding in Magri, at least there had to be more than just an officer’s “radar eyes” visual estimate testimony. The officer’s visual estimate had to be corroborated by a speed measuring device such as laser or radar. That all changed June 5, 1968 when the Court of Appeal decided People v. Olsen.

In Olsen, the defendant was convicted of speeding but an appellate court reversed the conviction. Id at 231. As explained below, the New York Court of Appeals ultimately reversed the appellate court and reinstated the conviction.

The only evidence that defendant operated his vehicle in excess of the 30 m.p.h. speed limit was the uncorroborated testimony of two police officers that they had observed defendant’s vehicle and estimated its speed to be between 50 and 55 In reversing the conviction, the appellate court held that the officer’s visual estimate “testimony, uncorroborated by any mechanical device for gauging speed, was insufficient, as a matter of law, to sustain the defendant's conviction.” Id at 231.

The appellate court’s reversal was appealed to the Court of Appeals which framed the issue as “whether the opinion evidence of police officers, properly qualified to testify as experts, is sufficient to sustain a conviction for speeding.” Id. The Court noted that heretofore, police testimony had to be corroborated by some mechanical device. Id.

Recall, the appellate court had held that an officer’s uncorroborated opinion testimony as to a vehicle’s speed based upon that officer’s observation of said vehicle is insufficient as a matter of law. The Court of Appeals disagreed citing to several civil cases establishing “that opinion evidence with regard to the speed of moving vehicles is admissible provided that the witness who testifies first shows some experience in observing the rate of speed of moving objects or some other satisfactory reason or basis for his opinion.” Id at 232.

The Court did concede “that a police officer cannot testify with precise accuracy as to speed of a vehicle.” However, the Court “fail[ed] to perceive any reason why [opinion evidence regarding vehicle speed] should be held to be insufficient as a matter of law to sustain a conviction for speeding in every case.” Id (emphasis in original). Estimates of a vehicle’s speed, based upon considerable experience, “must not be ignored in all cases.” Id. In Olsen, the officers estimated that the defendant was traveling between 50 and 55 m.p.h. in a 30 m.p.h. zone. That should have been, held the Court, sufficient to sustain a conviction. Id.

To its credit, the Court addressed the obvious observing that an officer’s estimate “absent mechanical corroboration, that a vehicle was proceeding at 35 or 40 miles per hour in [a 30 m.p.h.] zone might for obvious reason be insufficient, since it may be assumed that only a mechanical device could detect such a slight variance with accuracy sufficient to satisfy the burden necessary to sustain a conviction.” Id.

To summarize: Olsen established:
(1) that the uncorroborated opinion of a trained officer with regard to a vehicle’s speed might be sufficient to sustain a conviction for speeding;
(2) that the variance between the officer’s estimated speed and the posted speed limit must be sufficiently wide so that we may be certain beyond a reasonable doubt that the defendant exceeded the permissible limit;
(3) it may be difficult in a particular case to determine whether the variance between the estimated speed and maximum permissible speed is sufficiently wide;
(4) that the court must consider the facts and circumstances of the case including the nature and extent of the opportunity which the officer had to view the moving vehicle.



March 27, 2011, by Tilem & Associates

You’re driving on the Bronx River Parkway in Greenburgh when you’re pulled over by a Westchester County Police officer for speeding. What many motorists don’t realize is that the officer can arrest you for speeding; the officer is not required to issue you a speeding ticket on the side of the road. While it’s extremely rare for an officer to arrest someone for speeding alone; the officer does have that option.

New York Criminal Procedure Law sec. 140.10(1)(a) states in pertinent part “a police officer may arrest a person for: (a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence.” Speeding is an offense. Speeding is a traffic infraction, which is an offense. Despite the fact that traffic infractions are non-criminal offenses, technically CPL 140.10(1)(a) allows an officer to arrest you for speeding if committed in his presence.

Most likely arresting people for speeding would be frowned up by supervisors. Issuing a ticket for minor non-criminal offenses is preferred over arrest. As noted by one court: “Public policy arguments favor the issuance of ‘universal summonses’ (appearance tickets) where appropriate rather than arresting citizens where minor offenses are involved.” People v. Hazelwood, 104 Misc. 2d 1121, 1123-1124 (N.Y. City Crim. Ct. 1980)

However, it’s something to keep in mind before you decide to mouth off to an officer who stops you for speeding. Politely decline to admit to anything. For example, when asked the famous question: “Do you know why I stopped you?” -- You certainly wouldn’t want to say something like: “Sure I do, I was doing 85 in a 55 mph zone.”



March 20, 2011, by Tilem & Associates

Due to the number of highways that pass through it, many speeding tickets are issued in the Town of Greenburgh. The Bronx River Parkway, Route 119, I 287, the New York State Thruway (I 87) and the Sprain Brook Parkway all pass through Greenburgh. While there are posted maximum speed limits on these highways, there are times when drivers are legally required to drive below the posted speed limit.

Whatever the posted limit is, VTL 1180(a) requires that people drive at a speed “reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” Id. Often, VTL 1180(a) is used as a “catch all” by the police to ticket anyone who has an accident or leaves the roadway for “speed not prudent.” Of course, without an accident investigation of some type, it is wholly inappropriate for an officer to issue a “speed not prudent” ticket simply because a driver was involved in an accident or skidded of the roadway.

There are also several specific situations when a driver must reduce his speed. A driver must drive at an appropriate reduced speed when
(1) approaching and crossing an intersection or railway grade crossing;
(2) approaching and going around a curve;
(3) when approaching a hill crest;
(4) when approaching and passing by an emergency situation involving any authorized emergency vehicle which is parked, stopped or standing on a highway and which is displaying one or more red or combination red, white, and/or blue lights;
(5) when traveling upon any narrow or winding roadway;
(6) and when any special hazard exists with respect to pedestrians, or other traffic by reason of weather or highway conditions, including, but not limited to a highway construction or maintenance work area.
[VTL 1180(e)]

Most people are surprised to learn that even if there is no sign indicating a reduced speed limit, they must reduce their speed at intersections, around curves, when approaching a hill and on narrow and winding roads. [VTL 1180(e)]



March 11, 2011, by Tilem & Associates

Tilem & Associates won a complete victory in a DWI trial in Greenburgh last week after more than three years of litigation. The trial lasted two days and the defense focused on the lack of evidence that the driver was actually operating the vehicle which is a requirement in any DWI or DWAI trial. The driver had been facing up to a year in jail, revocation of his driving privileges a substantial fine and surcharge and imposition of the New York State Driver Responsibility Assessment.

The DWI arrest came about after an incident in the driver's condominium parking lot where he was found asleep at the wheel with the engine running. Greenburgh police claimed that when they woke him he put the car in gear. Police further claimed that he was too intoxicated to perform field sobriety tests.

Mr. Tilem has had extensive training in DWI related topics including DUI detection, Field Sobriety Testing and conducting DWI trials. He has won 7 of 8 DWI trials in the last eighteen months.

The law firm of Tilem & Associates is located in White Plains, NY just a couple of short miles of the Greenburgh Court which has a White Plains mailing address. Lawyers from the firm frequently appear in the Justice Court.