People v. Russo

• Decision Date: 28 August 1989
• Citation: 149 A.D.2d 255,545 N.Y.S.2d 211
• Parties: The PEOPLE, etc., Respondent, v. Michael A. RUSSO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 211

545 N.Y.S.2d 211

149 A.D.2d 255

The PEOPLE, etc., Respondent, v. Michael A. RUSSO, Appellant.

Supreme Court, Appellate Division,

Second Department.

Aug. 28, 1989.

Louis J. Galgano III, White Plains, for appellant.

E. Thomas Boyle, County Atty., Hauppauge (Richard P. Murad, of counsel), for respondent.

Before SPATT, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

BALLETTA, Justice.

A defendant charged with a violation of Vehicle and Traffic Law § 1180(b) is entitled to the issuance of a properly worded judicial subpoena duces tecum under CPLR 2307 requiring the production of relevant records at the hearing before the Traffic Violations Bureau.

The facts in this case are easily stated. On July 27, 1987, in the Town of Brookhaven, the defendant was stopped for speeding on the Long Island Expressway by Suffolk County Police Officer J. Farrell. Officer Farrell issued a summons to the defendant setting forth a violation of Vehicle and Traffic Law § 1180(b). Specifically, the defendant was allegedly driving 71 miles per hour in a 55 miles per hour zone. The defendant pleaded not guilty on the same day by completing the form included on the back of the summons, thereby automatically becoming entitled to a hearing before the Suffolk County Traffic Violations Bureau.

Prior to the date set for the hearing, the defendant moved pursuant to CPLR 2307(a) in the Supreme Court, Suffolk County, for the issuance of a judicial subpoena duces tecum. The proposed subpoena required the Suffolk County Police Department to produce at the hearing "a certain radar or other speed detection device together with all books, manuals, records and documents pertaining to the ownership, operation and maintenance of said radar or other speed detection device, now in your custody, and all other deeds, evidences and writing which you have in your custody or power, concerning the premises".

On February 2, 1988, the Supreme Court denied the defendant's motion, relying upon 15 NYCRR 123.1, which provides that the CPLR generally is not binding on the Traffic Violations Bureau, and this court's opinion in Matter of Miller v. Schwartz, 128 A.D.2d 783, 513 N.Y.S.2d 480, affd 72 N.Y.2d 869, 532 N.Y.S.2d 354, 528 N.E.2d 507. We disagree with the Supreme Court's reasoning and remit this matter for issuance of a subpoena in accordance herewith.

Initially, we reject the defendant's contention that the Sixth Amendment right to the effective assistance of counsel requires the issuance of the subpoena in this case. Although a defendant charged with a traffic infraction is entitled to be represented by counsel if he so desires (15 NYCRR 124.2), there is no Sixth Amendment right to counsel in such a case. A traffic infraction, such as the speeding violation under Vehicle and Traffic Law § 1180 at issue here, is not a crime, and any resultant penalty cannot be deemed for any purposes a penal or criminal punishment (Vehicle and Traffic Law § 155). For this reason, even before the enactment of Vehicle and Traffic Law article 2-A, which provides in certain cases, including the instant one, for the administrative adjudication of traffic infractions, no right to counsel had been recognized in this State as being constitutionally mandated for those accused of traffic infractions (see, People v. Phinney, 22 N.Y.2d 288, 290, 292 N.Y.S.2d 632, 239 N.E.2d 515; People v. Letterio, 16 N.Y.2d 307, 311-312, 266 N.Y.S.2d 368, 213 N.E.2d 670, cert. denied 384 U.S. 911, 86 S.Ct. 1354, 16 L.Ed.2d 364, mot. to amend remittitur granted sub nom. People v Kohler, 17 N.Y.2d 914, 272 N.Y.S.2d 138, 218 N.E.2d 903).

In 1969, the State Legislature enacted Vehicle and Traffic Law article 2-A which authorized the administrative adjudication of traffic violations for certain areas of the State. The legislative history of the statute reveals that a principal objective was the "speedy and equitable disposition" of traffic violation charges by using an administrative procedure, thus freeing the criminal courts to handle more serious matters (L.1969, ch. 1074, § 1). In relegating traffic violations to the administrative process, the Legislature explicitly specified that imprisonment was not a penalty which could be imposed in such cases (Vehicle and Traffic Law § 227[3]; see also, 15 NYCRR 124.7). The statutory scheme as a whole has been found constitutional (see, Matter of Rosenthal v. Hartnett, 36 N.Y.2d 269, 273-274, 367 N.Y.S.2d 247, 326 N.E.2d 811).

It is therefore readily apparent that the right to counsel does not attach in these proceedings, since, as the People correctly observe, that right arises only in criminal prosecutions (U.S. Const. 6th and 14th Amends.) where a defendant's personal liberty is at stake:

"The pre-eminent generalization that emerges from this Court's precedents on an indigent's right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation * * * it is the defendant's interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to appointed counsel" (Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640).

In People v. Farinaro, 36 N.Y.2d 283, 367 N.Y.S.2d 258, 326 N.E.2d 819, it was held that the defendants, who no longer faced the possibility of imprisonment following their convictions of various traffic infractions, were not entitled to assigned counsel on appeal, the court stating broadly:

"Argersinger v. Hamlin (407 U.S. 25[, 92 S.Ct. 2006, 32 L.Ed.2d 530], a case holding, in effect, that there is a constitutional right to counsel at a criminal trial where conviction would lead to a sentence of imprisonment, is inapposite to an appeal of a conviction for a traffic infraction where defendant no longer faces the possibility of imprisonment.

"There is no statutory right to the assignment of counsel in traffic infraction prosecutions (County Law, § 722-a; CPL 170.10, subd. 3, par. [c]. And this court has held that the State Constitution does not require assignment of counsel in such prosecutions (People v. Letterio, 16 N.Y.2d 307[, 266 N.Y.S.2d 368, 213 N.E.2d 670]. A fortiori, there would be no right to the assignment of counsel on appeal" (People v. Farinaro, supra, at 285, 367 N.Y.S.2d 258, 326 N.E.2d 819; see also, People v. Ross, 67 N.Y.2d 321, 325, 502 N.Y.S.2d 693, 493 N.E.2d 917).

Since the defendant does not have a constitutional right to the representation of counsel on the traffic infraction charge, it cannot be said that the denial of the subpoena violated his Sixth Amendment rights. Thus, if the defendant is to be entitled to the issuance of the subpoena, it must be upon some other basis.

That other basis can be found in CPLR 2307, which applies in criminal proceedings (see, CPL 610.20). CPLR 2307(a) provides, in part, that a subpoena duces tecum addressed to a "department or bureau of a municipal corporation or of the State, or an officer thereof" must be issued by a Justice of the Supreme Court in the district where the desired materials are located.

Pursuant to the statutory authority invested in him by Vehicle and Traffic Law § 215(a), the Commissioner of Motor Vehicles has enacted regulations governing proceedings by the Traffic Violations Bureau (15 NYCRR part 123). Those regulations provide in part:

"The Civil Practice Law and Rules and Criminal Procedure Law are not binding on this bureau. Accordingly, forms of pleadings, motion practice and discovery procedures set forth in those statutes do not apply to any proceedings conducted by this bureau unless specifically authorized by these regulations " (15 NYCRR 123.1 [emphasis supplied].

The People contend that the above regulation totally bars the defendant's use of CPLR 2307 to obtain a judicial subpoena in this case. They would read the regulation in its broadest possible sense to effectively deny the applicability of any portion of the CPLR to proceedings before the Traffic Violations Bureau. The defendant, however, contends that there is simply nothing in the above regulations that detracts from--or even addresses--the court's power to issue a subpoena under CPLR 2307.

The defendant's point that 15 NYCRR 123.1 cannot be read to invalidate every provision of the CPLR, or even of the CPL for that matter, is well taken, especially when one considers that the subpoena power invoked herein does not in any way infringe upon the Traffic Violations Bureau. It does not regulate or otherwise interfere with the proceedings of the Bureau, nor does it direct the Bureau to act or refrain from acting in a particular way.

Thus, the instant case is clearly distinguishable from that of Matter of Baumann v. Administration Adjudication Bur. of Suffolk County, 100 Misc.2d 608, 420 N.Y.S.2d 98, where the court dismissed a proceeding in the nature of mandamus to compel the Bureau to issue a subpoena duces tecum. Unlike the application in Baumann, the instant application pursuant to CPLR 2307 does not request anything of the Bureau, nor does it have the effect of superseding or supplanting the regulations governing the hearing.

It is one thing to say that the CPLR and the CPL are not "binding" on the Traffic Violations Bureau, but it is quite another to say that the Bureau, through its regulations, can make any part of those statutes not binding on the court, or can invalidate the court's power to act thereunder. The mere fact that the Legislature specifically authorized the Commissioner, or his hearing officer, to issue a subpoena in some instances (see, e.g., Vehicle and Traffic Law §§ 237[4]; 394[6], cannot negate the authority of the courts to issue a subpoena pursuant to CPLR 2307. As provided in CPLR 101, the CPLR is the governing procedure "in all courts * * * except where the procedure is regulated by inconsistent statute".

Contrary to the People's...