By T.A. Beckett, NMA Arkansas Member
Editor’s Note: Mr. Beckett is not an attorney but his mother was a trial lawyer in the New York City area who also taught legal writing and courtroom practice at Hofstra University. He notes that from age 16 until the time he graduated college, he spent time watching her in court and sometimes helped with the legal research. It shows.
I agree completely with your stance on Vehicle and Traffic Law offenses being handled via a criminal law process (Criminal Traffic Court is the Best Option, NMA E-Newsletter #450). Most such violations are treated this way, but the law has been tweaked to change what has been a long standing procedure to accommodate such things as red-light and speed cameras. The New York State legislature, not known as one of the more transparent bodies in America, bears some responsibility for this miscarriage of justice.
I had a run in with this issue two years ago when I was back for a family funeral in Queens, and ran afoul of one of the red-light cameras. I fought the ticket via mail; 1400 miles was a little too far to take on the battle in person. NYC issues a Notice of Liability when they catch someone going through a red with one of their cameras. The notice states it there is a $50 civil penalty to the registered owner of the vehicle. Who was driving is never established, since the applicable law states that the cameras are not to photograph the vehicle operator. I could be home in Arkansas while one of my kids is driving the car, and I’m still on the hook. That’s akin to charging me with murder because I own the house someone was killed in.
I sent my “ticket” back, stating several defenses, among them a case from 1955 in which the Court of Appeals held in NY v Hildebrand (308 NY 397, 1955) that the owner of a vehicle cannot be presumed to be the operator. The court held that “that it is hardly a normal or ready inference or deduction that an automobile which speeds along a highway is being driven by its owner, and by no other person.”
I also raised some procedural and Constitutional issues. All of this was to no avail, as the administrative law judge (ALJ) decided I was guilty, since my evidence was determined not to be credible.
I appealed the verdict, not expecting to win, just to delay paying them. The ALJ on the appeal also found me guilty. The reasoning was interesting, in that I also raised the issue that if this were a civil action, no money was due the City, since they had no damages. Here’s the thing about civil liability, at least as it works in New York: in order to recover damages, you have to have some kind of compensable injury. I would have to have knocked down a light pole, or something like it, causing damage to NYC property, for them to be due damages. They rejected that argument.
I also raised the issue that section 1111d of the VTL essentially covered what was prosecuted as a criminal charge, not civil. They rejected that, too, since the NY legislature, the ones who weren’t under indictment (that’s only partly a joke), had changed the law so that the automatic tickets would be handled as civil case. Here’s the problem with that: in New York, in civil practice, you can be liable in varying degrees, or not at all. Guilty or not guilty is not on their menu. Those findings do not apply in civil law; they are criminal determinations.
There are further steps one can take, once the administrative appeals have played out. One can file an Article 78 proceeding under the Civil Practice Law and Rules, which then puts the matter in Supreme Court, where the CPLR governs, not DMV regs. By doing so, one can pursue the case with an actual judge, instead of the ALJ’s who collect money for the city in the DMV tribunals. I spoke to a couple of lawyers about this matter; all of them were of the opinion that legal fees would hit five figures before it was done, and there was no guarantee of success. They also brought up the fact that a lot of attorneys were loath to take on such cases, since the penalty at the start was only $50, and no license points, and again, a successful case was unlikely. Or as my brother, who lives in New York’s Dutchess County, and has had a few of these camera tickets himself, says, you just sigh, curse them, and write a check so it goes away.
I finally sent them the $50 in December, four months after the ticket was issued. The only reason I paid them was because my wife’s name was also on the vehicle registration, and she did not want to be sucked into a situation where a warrant might be put out for our arrest on failure to pay. Otherwise, I never would have paid them. They’re not coming 1400 miles out here to boot the car, and I’m not going back there any time soon to give them the chance to get me while I’m there.
In the year prior to 2015 when I got this ticket, the City collected somewhere in the neighborhood of $21 million, mostly $50 at a time. It’s obviously a revenue raising program. Clearly, the theory is that almost everyone will do as my brother does, since it’s not cost effective to lose a day or more of work to fight something that costs a modest amount of money, and has no other real downside. I wrote a pointed letter to the Commissioner of Finance under whose purview this program operates (what does that tell you??) suggesting, among other things, that the way the program ran, the City should be prosecuted under RICO statutes.
One final thing before I get off this rant. When you send the money in, the check is payable to the Parking Violations Bureau (PVB). This part of the city bureaucracy has one of the more checkered histories in the annals of NY City government. The big thing that they are noted for was a scam back in the late 70’s where people would have their registrations held by DMV for nonpayment of parking tickets. In some cases the amounts were significant, well into the thousands. You’d come down to PVB and pay your tickets to ransom your registration, then eight months later, you’d get a notice that you owed the City all over again, on the same tickets. The burden was on the owner to prove he paid up. A lot of people didn’t save their receipts, and wound up paying a second time. PVB administration knew this was going on, because they were part of it.
Editor’s Note: The opinions expressed in this newsletter are those of the author.