By COREY ADWAR
A Smithtown lawyer has taken on a pro bono case to help defend a Port Jefferson Station resident in his effort to fight an alleged red light camera violation, with evidence that the yellow interval at that intersection was malfunctioning at the time of the alleged violation.
Scott Kreppein, of Hagney, Quatela, Hargraves & Mari PLLC in Hauppauge, is providing counsel for the appellant Thomas Buttaro in the case, with an appeal filed recently at the appellate term: second department of the Supreme Court of the State of New York.
Mr. Buttaro said his wife was driving a minivan licensed to him the afternoon of May 3, 2011 when she drove across Nesconset Highway’s intersection with Mark Tree Road .2 after the light had turned red, according to a summons he received from the county a few weeks later. That summons listed the time span of the yellow light at 3.9 seconds.
Mr. Buttaro, a New York City firefighter and former New York City police officer, then did his homework. He obtained documents through Freedom of Information Law (FOIL) requests with both New York State, which sets the timing of the yellow lights at that intersection, and Suffolk County, which operates the red light camera there. He discovered through these requests that the state Department of Transportation (DOT) had an existing policy to match the posted speed limit of each intersection with uniform yellow intervals—3.6 seconds for 30 miles per hour up to 5.4 seconds for 55 miles per hour. Mr. Buttaro discovered that road crews were being instructed in March 2011 to set the yellow intervals accordingly, giving priority to intersections with red light cameras.
But Mr. Buttaro also discovered that the yellow interval at the intersection of the alleged violation, Nesconset Highway at Mark Tree Road in Terryville, was not fixed until May 23, 2011. A single signal maintenance report for that intersection he discovered in his FOIL request recorded the purpose as “check yellow clearance” with one of the comments left by the foreman stating, “adjusted yellow clearance as per office request.” According to the information he gathered, Mr. Buttaro would have cleared the intersection 1.3 seconds before the light turned red had the yellow interval been set correctly according to the state DOT’s policy.
Mr. Buttaro said Suffolk County’s Red Light Safety Program should only be enforced at intersections that comply with the state DOT’s policy for yellow intervals. “If you’re running the program on anybody else’s equipment at the very least you have to make sure the equipment is set properly and timed properly,” he said.
At his appearance October 19, 2011 at Suffolk County First District Court in Central Islip, Mr. Buttaro said he was not given a chance by the court to defend himself, nor was he allowed to submit his FOIL information. A transcript of his appearance shows that Mr. Buttaro acknowledges that his vehicle went through the red light based on video and photo evidence, but tried to question the matter of the yellow light interval. “For a fifty-five mile an hour zone, I’m questioning the court – maybe I’m questioning the county; is 3.9 seconds valid to stop a motor vehicle on a downgrade in a fifty-five mile an hour zone?”
“According to the State Department of Transportation, it is,” replied the assistant county attorney, identified in the transcript as “Mr. Brown,” who added that the DOT sets the timing of the yellow light intervals. The judge then declared Mr. Buttaro guilty. When the defendant mentioned his FOIL requests, said, “If you have anything that you believe is illegal, etc., you can appeal it,” said the judge after the defendant began to mention his FOIL requests.
“On this level, I cannot submit a formal request to the state or nothing like that?” Mr. Buttaro asked.
“No. That’s not part of it,” the judge said.
Mr. Buttaro was then informed of his right to appeal and told he could submit his FOIL information at the appeal hearing but had to pay the $50 fine before he could appeal. The total length of the hearing was less than four minutes. In a telephone interview this week, Mr. Kreppein said is not true that Mr. Buttaro had to pay the fine before he could appeal. “That’s not the rule,” he said. “I don’t know why they would tell him that’s the rule.”
Moreover, Mr. Kreppein will argue that Mr. Buttaro was deprived of due process of law and should have been permitted to present a defense at the hearing rather than being told he had to wait for a later appeal hearing. “In this case, Appellant was not permitted to present a defense. Appellant was, essentially, taken into a room and told that he was guilty, no matter what, with no opportunity to present evidence, cross-examine a witness, or even have the merits of his defense considered by the Court,” Mr. Kreppein said in the brief he has prepared. Mr. Kreppein will further argue that the red light camera program under Suffolk County Local Law 20-2009 and New York Vehicle and Traffic Law 1111-b, on its face or as applied, violate the Sixth Amendment of the U.S. Constitution or Article I Section 6 of the New York State Constitution because a sworn statement of facts is given by a country employee and treated as prima-facie evidence in place of a live witness for the appellant to question.
“In some cases like this, there may actually be a defense—where there is a malfunction of a light or a car is stolen—where they actually have a defense and they should be able to raise it,” Mr. Kreppein said. He said he was willing to take on this pro bono project because he is hoping to set a precedent with this case that will offer some clearer guidance for courts to follow in the future when handling the red light camera program cases. “The whole program is relatively new so what the people’s rights actually are that are challenging these isn’t exactly clear,” Mr. Kreppein said.
The Suffolk County Red Light Safety Program allows Suffolk County to install and operate devices which capture photographs of traffic-control signal violations at up to 100 intersections in the county. The program began in 2009 and annual reports are submitted to the governor showing the results and quality of the adjudication process.
Mr. Buttaro said he is not opposed to the red light camera program itself, but would like to see it enforced more fairly. “I’m not against the red light program,” he said, adding “let’s make sure the program and everything is set in the proper way.”