Farkas v. State

• Decision Date: 27 October 1978
• Docket Number: No. 61247,61247
• Citation: 96 Misc.2d 784,409 N.Y.S.2d 696
• Parties: Alex FARKAS, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 696

409 N.Y.S.2d 696

96 Misc.2d 784

Alex FARKAS, Claimant, v. The STATE of New York, Defendant.

Claim No. 61247.

Court of Claims of New York.

Oct. 27, 1978.

Michael LoPinto, Ithaca, by Raymond J. Schlather, Ithaca, of counsel, for claimant

Louis J. Lefkowitz, Atty. Gen., by William J. Bulsiewicz, Asst. Atty. Gen., for defendant.

DECISION

THOMAS J. LOWERY, Jr., Judge.

This timely filed claim seeks damages for abuse of process, malicious prosecution, and negligence, arising from the alleged unauthorized issuance of a "uniform traffic ticket" to the claimant.

This claim had its origins in an incident occurring on May 21, 1976. On that date, Trooper Alfred H. Smith of the New York State Police received a call at approximately 6:10 P.M. to return to his barracks to interview a woman who wished to file a complaint regarding an alleged violation of the Vehicle and Traffic Law. Upon his return, she related to him that she had been stopped at the intersection of New York State Routes 13 and 366, waiting to make a right hand turn onto Route 13. She stated that, while she was waiting for traffic to clear, the driver of a blue Chevrolet pulled up behind her, beeped his horn, made an obscene gesture, then pulled out from behind her and passed her on the left, making a sharp right hand turn across the front of her automobile and onto Route 13.

Officer Smith obtained the claimant's address from a computer check of the license plate number given to him by the woman.

Without obtaining a written statement from the woman, and despite the fact that the offense did not occur in his presence, Officer Smith then immediately proceeded to the claimant's home, where he interviewed the claimant.

Although the claimant admitted to operating the vehicle in question that day, he denied any wrongdoing, explaining that when he encountered the stopped vehicle, he beeped his horn and gestured to the operator to proceed, and when she failed to do so, he pulled around to the left of her vehicle and made a right hand turn onto Route 13.

No arrest was made, however, Officer Smith, acting in good faith and believing there to be probable cause that an offense had been committed, issued a "uniform traffic ticket", charging the claimant with a violation of subdivision (a) of section 1163 of the Vehicle and Traffic Law, which constituted a traffic infraction. ¹ Based upon instructions that he had received when entering the force in 1968, he believed that he had authority, under the circumstances, to issue the ticket.

Thereafter, on May 28, 1976, claimant appeared in court as directed by the "uniform traffic ticket". There is no evidence that Officer Smith had, prior to the claimant's appearance, filed either an information or simplified information, as required by subdivision (1) of section 150.50 of the Criminal Procedure Law. Likewise, no evidence was presented as to what occurred at this appearance, other than that the claimant was required to post bail of $50.00 and told that a trial date would be set in the near future. Having never been advised of a trial date, the claimant, after several months had passed, contacted an attorney, and the charge was ultimately dismissed on April 7, 1977.

The claimant contends that section 150.20 of the Criminal Procedure Law (L.1970, ch. 996, § 1, effective September 1, 1971 ) delineates the circumstances under which an "appearance ticket" ² may be issued. He argues that this section restricts the issuance of such tickets to only those circumstances where a warrantless arrest is authorized by section 140.10 of the Criminal Procedure Law. He concludes that since section 140.10 of the Criminal Procedure Law does not permit an arrest for a traffic infraction not committed in the officer's presence, the issuance of a traffic ticket under such circumstances is also improper. The alleged unauthorized issuance of the ticket is the predicate upon which the claimant's various causes of action are founded.

In order to properly determine the issues presented here, the court must examine the nature and purpose of an "appearance ticket" and the authority for its issuance.

Prior to the enactment of article 150 of the Criminal Procedure Law, "appearance tickets" were primarily confined, on a state-wide basis, to traffic infraction cases. The "traffic ticket", which was loosely referred to as the "summons", had no statutory sanction for its issuance. (Mormon v. Baran, Sup., 35 N.Y.S.2d 906.) There were no restrictions on the use of the ticket, and it appears that they were issued whether the offense was committed in the officer's presence or not. (Cf. People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912, 243 N.E.2d 135.) It was not considered a process which compelled a defendant's appearance in court. ³ (City of Buffalo v. Neubeck, 209 App.Div. 386, 204 N.Y.S. 737; Mormon v. Baran, supra; cf. People v. Boback, supra.) The issuance of the ticket did not constitute an arrest. (People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901; Jones v. State of New York, 8 Misc.2d 140, 167 N.Y.S.2d 536.) It was considered merely an invitation to appear and served as a notice that the defendant would be charged with an offense at a specified future date. (Matter of Coville v. Bennett, 57 Misc.2d 838, 293 N.Y.S.2d 685; People v. Preble, 39 Misc.2d 411, 240 N.Y.S.2d 845; Mormon v. Baran, supra.) The issuance of the ticket itself did not constitute the commencement of a criminal proceeding. This depended upon the subsequent filing of an accusatory instrument with a court of appropriate jurisdiction. ⁴ (Code of Crim. Pro., § 144, repealed L.1970, ch. 996, § 1; CPL 100.05.)

There are no reported cases that address the issue of whether the enactment of article 150, and particularly section 150.20 of the Criminal Procedure Law restricted the issuance of "traffic tickets" to only those cases where a warrantless arrest was permitted under section 140.10 of the Criminal Procedure Law.

A reading of section 150.20 of the Criminal Procedure Law reveals that its language is not proscriptive in this regard. Further, an examination of the Commission Reports on the then proposed Criminal Procedure Law (Fifth Interim Report of the State of New York Temporary Commission on Revision of the Penal Law and Criminal Code, February 1, 1966; Sixth Interim Report of the State of New York Temporary Commission on Revision of the Penal Law and Criminal Code, February 1, 1967 ) reveals no intent to restrict the issuance of "traffic tickets", rather, the purpose of section 150.20 of the Criminal Procedure Law was to expand the state-wide use of the "appearance ticket" to all those cases where a warrantless arrest would be permitted. Therefore, the court concludes that the use of the "traffic ticket" was in no way restricted by the enactment of this statute.

Giving consideration to the nature and purpose of the "traffic ticket" and to the fact that its issuance here does not appear to be prohibited, the court turns to an examination as...