NEW YORK HAM TICKETED- Part II

To keep everyone up to date on this action, I decided to enter another post on QRZ. This is what happened during my court appearance in chronological order.
1. Arrived early to meet the other hams that volunteered to be present with me.
2. There were about 20 people in the courtroom that had to see the judge. A court recorder was also present.
3. I was the last person called.
4. I handed the judge a copy of the New York Traffic Law 397 that I copied from the public library earlier that day. A copy of my Amateur License, a copy of PR Docket 91-36 along with my ticket.
5. The court recorder grabbed all the above documentation from the judge and handed it all back to me, except for the ticket. He told the judge he needed to talk to him (the judge) in his office. The judge excused himself and the court recorder and went to an adjacent office leaving me there for about a minute. They both returned, the judge stated, “I’m entering a plea of innocent for you, you are instructed to seek an attorney and be present in court July 9, 2003”. “Will you be available”? I agreed. I also asked him if he could review the information I handed him earlier. “I can read and interpret NY Law, I don’t need you to do it for me, I’ll be happy to discuss law with your attorney”.”He speakes the same language as I do, and I speak his language”.
6. They offered me the paperwork to obtain a public defender, and returned my ticket with another piece of typed paper with the new court date.
7. The judge asked me where the radios were now. “In my vehicle, Sir”.
8. The judge then told me that was all. I left.


Things I wonder.
1. No one else in the courtroom had any documentation taken from the judge by the recorder and returned to the presenter.
2. At no other time was there a need for the judge to be removed for “secret reasons” in any other cases.
3. I was never asked about a plea of innocent or guilt, it was put there for me. (I would have pleaed innocent anyway). Everyone else was given that opportunity except me.
4. The question about radios has me baffled. I thought he was asking where they were so they could be confiscated. My wife, KF4SEG thinks that if I had removed them after the incident and put them in the garage, telling the judge, “In the garage, your honor”. Would have somehow admitted self guilt. I was happy with my answer.
5. Another funny thing about the question of radios…. The judge’s question was radios, plural. Not (singular) radio. How could he have known there was more than one? The ticket certainly does not say it. I think someone in NYSP had gotten to them prior to me appearing.
6. I made a mistake on an earlier posting, the two radios are IC-706 MKIIG and an IC-2100M. I don’t know where IC-1500 came from.


Again, I would like to thank all the hams who have showed their support. 73 de KC5GAX

 

Richard,

That whole thing really stinks...... the duty of a court reporter is to record that which occurs in a courtroom, not to provide counsel to the judge on how a case should be adjudicated.

The judge probably read the State Trooper's deposition, which probably stated that there was more than one radio.

I agree with your wife that your honest answer is probably the best way to go, and for the reasons that you stated.

The office of NY State Senator James Seward (R-51) is aware of your case (refer to the other thread); we need to make more state legislators aware of it as well. This should be a part of the process of effecting a change in the law as well as keeping others from having to face what you are dealing with.

I wish you well; please keep us posted on the progress of the case (within the confines of the advice of counsel, of course).

73,

Jerry

 

As I suggested in the previous thread, we should all write not only our local representatives, but also the Governor. Pataki was once a ham, so he may have some understanding of this. It would also not hurt to mention in the letter if you are a member of one of the many organizations in New York State (ARES, RACES, SATERN, various radio clubs) that provide public service and lifesaving emergency communications through Amateur Radio.

 

Richard: Thanks for the update. I'm not so sure that the judge is doing the wrong things.

First of all, it is incredibly unusual for a judge to INSTRUCT a defendant to plead not guilty. That's really weird.

I think that the judge has a good idea that the law is bogus and preempted, and he WANTS to fix it by virtue of his review and decision.

For him to leave and talk to the reporter, well, that could be a procedural question as to how to enter your documents, since you didn't have counsel, etc. Strange, but not a cause for over concern.

The reason for the question probably has more to do with eventual damages to you, e.g. costs, mental anguish, etc., for having removed your gear. Stand your ground!!!

I would bet somebody way up the legal chain, or who has an interest in fixing the screwed up law, has spoken to the judge and that would explain why the direction from his honor.

Go get an ARRL counsel, or call Newington yourself. ARRL knows about your situation and really has to help you for the sake of all.


Best of luck, and thanks for the update.


Lee
W6EM
Bradenton, FL.

 

Maybe the court recorder read the first thread and told the judge about the "hornets nest" of Hams who replied and suggested you sue the police dept.  Possibly, he might want to ensure none of your rights are violated further and wants to be able to communicate a "bargain" with the lawyer which they assume you might not understand.

I hope they didn't read the first post and get angry about all of us "wannabe" attorneys interpereting the law for you.

Good luck

 

You are in New York, remember. Appointed and elected persons are not necessarily cabable of doing anything correctly.

RC
KD5PSH

 

Why don't you post the judges name and address and we can get a letter writing campaign going, including to the press. Also, a copy of the NY law.

Imagine a judge on the bench so arrogant that he would not accept your copy of the law. Maybe it is time to sue the arrogant clown.

RC

 

I've never heard of a Judge asking a defendant if they "would be available".  It's usually "here's the date and here's the time".

Maybe the Judge has the foresight to realize that he will be setting precedent and wants to have all the t's crossed and i's dotted by having you represented by an attorney.

We can only hope.

Or maybe it was just his lunch time and he wanted to blow the case off to another day.

 

OK.. I'll get real stupid here...

Is there ANY possibility that the court reporter was a Ham, but because of the position held did not reveal it 'on the record' but took the Judge aside to clue him in?

 

Several of the above possibilities may well be true, although a letter-writing campaign to the judge would eb aa bit of a stretch and maybe a potential problem. It is possible that the judge or the clerk/recorder may be hams, or have a ham in their families. They may have also dealt with thie officer in the past and there may be something there that will receive the judge's attention.

This may be a case in which the DA, the judge, and your attorney get their heads together to find a reasonable solution that serves all parties well.

I had head that Gov. Pataki was a ham, but was not sure of the details. Could it have been in his younger (pre-political) days?

If the court rules that you have a right to have your radios in your vehicles, then the legislature may be even more likely to consider changing the law to make it constitutionally correct and to comply with the FCC ruling. Contacting state reps and the Governor will probably help in this approach.

 

I'm not an attorney, and I could read all kinds of things into what the judge said, but that's not a safe thing to do here. Unless you are willing to have a criminal conviction on your record, I think it is mandatory that you get an attorney right away. Definitely see what ARRL can do to help you - call, do not write. You have little time to put a defense together.

The judge may feel that there is a serious question about what the law actually says - that's not hard to imagine since it is so badly written. If the District Attorney chooses to pursue it, your attorney will need to challenge the content and validity of the law. There is really no question that you have a radio in your car that is capable of receiving police frequencies. The question is whether or not the exemption for ham radio, the PR docket, or anything else actually applies here.

Sadly, you are the one that got busted and now you have to represent all the hams who might find their way into that corner of New York with a 2 meter rig in the car. If you are convicted, I would expect that trooper and her fellows to write lots more tickets. I, for one, will not be driving in New York until this is fixed. I could not possibly afford to make multiple trips there to clear this up, and I sure wouldn't want a conviction on my record! Little trifles like that can come back to haunt you decades later - see if you can get a security clearance with something like that on your record!

I said before that I would be willing to contribute. Set up a PayPal account so those of us with a credit card can send you some money to help out.

 

</span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote (KD5PSH @ June 12 2003,10:18)</td></tr><tr><td id="QUOTE">Why don't you post the judges name and address and we can get a letter writing campaign going, including to the press. Also, a copy of the NY law. [/QUOTE]<span id='postcolor'>

A letter-writing campaign would be a bad idea.  The judicial branch of the government is NOT supposed to be a popularity contest.  A judge is supposed to rule based on the law.  A million letters will not change the interpretation of a law.  If letter-writing could have an effect on a judge, I am sure that Bill Gates would have been executed a couple of years ago.  You are supposed to use the letters on your elected officials, who have the power to get the law changed.

</span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote (KD5PSH @ June 12 2003,10:18)</td></tr><tr><td id="QUOTE">
Imagine a judge on the bench so arrogant that he would not accept your copy of the law. Maybe it is time to sue the arrogant clown.[/QUOTE]<span id='postcolor'>

And insulting the law will not help at all.  Let's just suppose that the judge IS himself a ham (unlikely, but possible).  If he reads these forums, then he knows that he has been insulted by a ham (or two).  This will not help anybody. Keep in mind that the judge is probably just a guy who is trying to do his job the best that he can. Although he may be wrong, he probably does not have any sort of vendetta against the amateur radio community.

 

There is a right and a wrong way to address the Court. Whether it's asking Your Honor for permission to introduce evidence, or the introduction of information into the process.

The proper way, as I understand it has been done hundreds of times before, is in the form of what is called an Amicus Curiae or "friend of the court" brief.

Admittedly, it is supposed to be in the right form, but any interested party may submit such a document into a case in which they may be affected by the outcome.

In fact, this would be a very good way for the ARRL to present prior case law, and the intent of PR91-36.

Again, I'm not an attorney, but have had quite a bit of experience with the system.

Lee
W6EM

 

The Judge did you a BIG favor:

1) You are facing very serrious business, yet you approach it foolishly. You do not know about the law, the rules of proceedure, or how to defend yourself. If NY is like some other states, you might need to file a written motion to dismiss together with a legal brief supporting the motion.

As for the Judge entering an "Innocent plea" ....he did that to PROTECT you from your own lack of knowlege of the law and rules of proceedure. It may be that a failure to enter a plea in NY equates to an admission of guilt!!!!!

If you needed surgery, would you do it yourself?

2) STOP fooling around. This is a SERRIOUS situation. You NEED a NY lawyer. Now. Things can happen that you do not understand that can NOT be undone later or, IF correctable, may cost you tens of thousands to pay a lawyer to undo.

3) Unless you really want to be a martur, have a conviction on your record, pay a fine, risk confiscation AND risk JAIL time...re-read #2 above.

 

Here is a little hint..... Judges generally DO NOT look at anything that is not officially part of the record, i.e., filed with the clerk of the court AND served on the opposing party. You probably did not know that....AND THAT'S WHY YOU NEED A NY LAWYER!