Does Your Traffic Court Waiver Need to Be Signed Before a Notary?
Written By: Benjamin Goldman, Esq.
New York State law allows defendants to “waive” their personal appearance in court for any traffic infraction. This means your attorney can go to traffic court in your place to handle your traffic ticket. Your lawyer can negotiate on your behalf, file paperwork for you, and enter into a disposition in your place. This means your lawyer will likely be entering into a guilty plea to a reduced charge. Defendants have various rights and by pleading guilty to a reduced charge they are waiving those rights. A judge needs to be sure that the Defendant agrees to waive those rights.
When a traffic ticket attorney retains a client that does not want to appear in court, the attorney gives their client a “Waiver/Authorization”. This form has different names and the content of the form may vary from attorney to attorney. However the form always included an acknowledgment by the defendant that they are waiving some basic rights, including the right to appear, the right to have a trial, the right to testify, the right to cross examine the police officer, etc.
Some justices require that the waiver be signed before a notary. This is often a hassle for clients and an especially big hassle for Canadian clients and other clients that are overseas where notaries are difficult to come by. This requirement is not based on a correct understanding of the law. Judges cite CPL 340.20 (2). The statute says “permits entry thereof by counsel upon the filing by him of a written and subscribed statement by the defendant declaring that he waives his right to plead to the information in person and authorizing his attorney to enter a plea on his behalf”. The word “subscribed” means signed, not notarized. See Black Law Dictionary “Subscribe.” Some judges cite CPL § 380.40 that states “Where sentence is to be pronounced for a misdemeanor or for a petty offense, the court may dispense with the requirement that the defendant be personally present. Any such motion must be accompanied by a waiver, signed and acknowledged by the defendant.” The word “acknowledged” means notarized. But the notarization requirement does not apply to traffic tickets. CPL § 380.40 states an exception for “a different or inconsistent procedure is provided by any other law” and VTL § 1805 specifically allows for waivers that are not notarized. Furthermore CPL § 380.40 cannot be used for traffic tickets because then every guilty plea can’t be accepted because it is not compliant with CPL § 380.40. Some judges require that the form have an original signature and will not accept copies. This also does not appear to be correct.