County of Nassau v. Levine

29 Misc. 3d 474
CourtNew York District Court
DecidedJuly 12, 2010
StatusPublished
Cited by5 cases

This text of 29 Misc. 3d 474 (County of Nassau v. Levine) is published on Counsel Stack Legal Research, covering New York District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County of Nassau v. Levine, 29 Misc. 3d 474 (N.Y. Super. Ct. 2010).

Opinion

[475]*475OPINION 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 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, EO. 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 [476]*47614, 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 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” [477]*477for 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 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.

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Bluebook (online)
29 Misc. 3d 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-nassau-v-levine-nydistct-2010.