People v. Aucello

• Decision Date: 27 March 1990
• Citation: 146 Misc.2d 417,558 N.Y.S.2d 436
• Parties: The PEOPLE of the State of New York, Respondent, v. Julius C. AUCELLO, Appellant.
• Court: New York Supreme Court

Page 436

558 N.Y.S.2d 436

146 Misc.2d 417

The PEOPLE of the State of New York, Respondent, v. Julius C. AUCELLO, Appellant.

Supreme Court, Appellate Term,

Ninth and Tenth Judicial Districts.

March 27, 1990.

Servino & Seymour (Anthony J. Servino, of counsel), for appellant.

Carl A. Vergari, Dist. Atty. (Christopher M. Shaw, and Bruce Edward Kelly, of counsel), for respondent.

Before DiPAOLA, P.J., and STARK and COLLINS, JJ.

MEMORANDUM.

Appeal by defendant from a judgment of the City Court, City of White Plains, Westchester County (Holden, J.) rendered on April 19, 1989 convicting him of passing a stopped school bus (Vehicle and Traffic Law § 1174[a] and sentencing him to a fine.

Judgment of conviction unanimously reversed upon the law and as a matter of discretion in the interest of justice, information dismissed and fine remitted.

Defendant made a written request for a supporting deposition and following a failure by the complainant police officer to serve and file the same, filed a written motion to dismiss on said ground. On the date set for trial, the officer brought the deposition to court, and the court asked defense counsel if he wanted to have an adjournment or to proceed. Counsel replied that he was moving for a dismissal based on the law. The court subsequently "granted" the motion but also directed the officer to re-serve the untimely deposition together with a copy of the original traffic ticket bearing an amended trial date. Before the new trial date, defendant again filed a motion to dismiss for failure to supply a timely supporting deposition, and the court reserved decision until after trial. At such time, the motion was denied, and defendant was found guilty of the traffic infraction and fined.

At the outset, we note that the Legislature, by virtue of its enactment of CPL 100.25(2), entitled defendant, upon his timely request, to a supporting deposition of the complainant officer as a matter of right and mandated that the officer be ordered by the court to serve a copy of such deposition within a specific time-period, i.e., thirty days of the court's receipt of the request or at least five days before trial, whichever was earlier, and to file such deposition with proof of service. The Legislature further provided in CPL 100.40(2) that a failure by the officer to comply with such order within the aforementioned time-period "renders the simplified information insufficient on its face."

In People v. De Feo, 77 Misc.2d 523, 355 N.Y.S.2d 905, we held that a failure to provide a supporting deposition in a timely manner renders the simplified traffic information defective as a matter of law and subject to dismissal and that the court below erred in granting a prosecutor's request for an adjournment of the trial solely for the purpose of providing a supporting deposition. In People v. Bachorick (republished NYLJ, Feb. 7, 1990 [App.Term, 9th & 10th Jud.Dists.], we reversed a "passing a stopped school bus" conviction, dismissed the simplified traffic information in a situation in which there had been a failure to serve a supporting deposition in a timely manner, and observed that the defendant's written, pretrial motion to dismiss should have been granted, since the simplified information was insufficient on its face in view of the failure to comply with CPL 100.25(2) and 100.40(2).

The lower courts in this Department have, however, followed diverse approaches when confronted with factual situations similar to the case at bar. In People v. Origlia, 138 Misc.2d 286, 524 N.Y.S.2d 163, the City Court of Long Beach granted a motion by the defendant to dismiss simplified traffic informations for failure to timely furnish supporting depositions and denied an application by the People to file a supporting deposition or, in the alternative, to file a superseding information.

In People v. Hartmann, 123 Misc.2d 553, 473 N.Y.S.2d 935, the City Court of White Plains granted a defendant's motion to dismiss an information charging a traffic infraction without prejudice to the People re-prosecuting the same charge using the same uniform traffic ticket and supporting deposition. In People v. Jeck-Tisch, 133 Misc.2d 1090, 509 N.Y.S.2d 463, subsequent judgment of conviction affd. without opn., NYLJ, Aug. 25, 1988 [App.Term, 9th & 10th Jud.Dists.], the same City Court denied a motion by the defendant to dismiss and stated, "Moreover, an additional specific reason for the result we reach is this: It is to be very carefully noted (once and forever we hope) that any dismissal of a traffic infraction for utter failure to provide a supporting deposition in a timely fashion (let alone supplying an allegedly defective deposition) is never a dismissal on the merits, and the People are always free to recommence prosecution by filing another information ("re-serve the ticket and a new deposition ..." at 1092, 509 N.Y.S.2d 463). Although, as already indicated, we affirmed the Jeck-Tisch conviction without opinion, we deem the last quoted statement dicta, inasmuch as the supporting deposition in such case was concededly timely (ibid., at 1090, 509 N.Y.S.2d 463) and sufficient.

In People v. Spiegelman, 142 Misc.2d...