Tuesday, January 06, 2009

Attorney Ethics and Jurisdiction

Here's an interesting ethics question that came up in our practice. We have gotten a number of cases dismissed on "geographic jurisdiction" under Article 20 of the CPL. In short, our client is charged in a town, but it turns out that the location where the incident occurred is clearly in a different town.

When it's a simple traffic ticket the police are unlikely to reissue the ticket. It's just too much trouble to go and find the defendant and serve them again for something so minor.

What happens if your client flees the jurisdiction before any charges are refiled or served upon him? With a felony the client risks extradition, and that's no fun. With a misdemeanor, extradition is pretty unlikely.

What do the ethical rules say about advising your client on fleeing the jurisdiction? I don't see a clear answer.

The typical case where this arises is where the defendant lives here but has little or no ties to New York and can easily move back to their home state. If the defendant leaves and nothing happens after a couple years, there is a good chance of a speedy trial dismissal and the statute of limitations will have passed (on a misdemeanor).

An attorney should advise the client of all the consequences that might arise from any course of action. Where fleeing the jurisdiction has mostly positive consequences, it would seem that an attorney might even recommend it.

The problem is that this leaves a bad taste in the mouth, at least for some people.

So what do readers of the Albany Lawyer blog have to say? Please post your comments.


Anonymous said...

It seems that you've mixed together various factual scenarios that would have different ethical outcomes. If there are charges pending against a defendant, it would never be ethical to advise him to flee.

If there are no charges pending, though it is possible that charges could be refiled, then it would not be "flight" as he is not under the jurisdiction of a court and is free to move about at will.

A defendant doesn't flee because he leaves the jurisdiction. He flees when he leaves the jursidiction in contravention of an order to remain by a court with lawful jursidiction to command him to remain. Jurisdiction exists when the court has authority by law to assert its authority over the individual, which requires that there be a viable accusatory instrument.

Should the court dismiss an accusatory instrument, then there is no jurisdiction over the person of the defendant, and he is as free as any other person to move about the country.

Unknown said...

That's why I said: flees the jurisdiction before any charges are refiled or served upon him. The court has no jurisdiction until the charge is refiled, and no personal jurisdiction until the defendant is served.

Anonymous said...

I understand, but questioned the use of the word "flees" when referring to a time period when there are no pending charges. At that point, it's not fleeing.

Unknown said...

I agree from a legal standpoint, but I think from the lay perspective it still smacks of flight.

Anonymous said...

If we discuss legal ethics in terms of a layman's understanding, we're not going to get very far or be very accurate.

Unknown said...

This blog is written both to lawyers and to non-lawyers. I'm not sure what term one would use instead of "flee" to describe leaving the jurisdiction because you think it's likely that charges will be filed against you, even though they haven't been filed yet. While "flee" may not be technically correct as used in case law on such things, it is the common meaning of the term.

Anonymous said...


I find it Odd that you would have that many dismissed for this reason. I have never seen any like that, nor have 2 of my fellow judges that I called tonite. Are the police that sloppy in Albany area?

Second, until I have an proper, valid accusatory instrument, I have no juristiction, so you can come and go as you want, its not fleeing to leave, nor do I see it as unethical to lay out your clients options. I have had defendants show up in court holding thier copy of an appearance ticket an I had no Accusatory, my answer always is, "Nice piece of Paper, Have a good day" You get some really strange looks until you explain the issue.

Unknown said...

Responding to pml:

It's usually something close to a town or village line. Some examples:

1. Ticket was issued for Catskill Town Court, near the bridge across the Hudson, by a State Trooper. I had raised an issue about the vague location in the bill of particulars. During the suppression hearing the judge inquired about the specific location, and then announced that it was in the village and therefore the village court had primary jurisdiction. Case dismissed.

2. Client overdosed while visiting friends. Homeowner called 911. Deputy sheriff writes ticket for Town A for possession of syringe (or something like that). I knew it was close to the town line and looked it up the address -- assessor's records show the address in Town B. Motion has been pending for months. I expect it will be dismissed.

3. Client stopped on Route 155 just south of where I grew up. Deputy writes ticket for Village of Voorheesville. My gut said it was outside the village line. Sent our intern to village hall and confirmed. Dismissed. Proper jurisdiction is in Town of New Scotland.

4. Client hits a building in the Town of Nassau. State Trooper writes UPM appearance ticket for Town of Nassau, but for some reason writes DWI for Town of Schodack. Schodack dismisses sua sponte.

5. Client ticketed for Albany City Court on the Thruway between Exits 23 and 24 for two violations. During trial Trooper testifies about location and it sounded to me like it was in Guilderland (my hometown). Another Trooper had a listing and the mile marker involved was in fact in Guilderland. Dismissed (but client convicted of other ticket which was in Albany). Funny thing is I had a deal for a parking ticket and client rejected the deal against my advice.

Common thread: the arresting officer is not specific to that jurisdiction. You'll never see a village cop who doesn't know the village lines, and most town cops know their town and village lines too. But deputies and Troopers can't possibly know all the lines.

Anonymous said...

It could be, that up in our neck of the woods we have a lot less congestion, a lot more rural roads and most roads are marked.