People v. Blake

• Decision Date: 01 June 1992
• Citation: 154 Misc.2d 660,585 N.Y.S.2d 993
• Parties: The PEOPLE of the State of New York v. Calvin BLAKE, Defendant.
• Court: New York City Court

Page 993

585 N.Y.S.2d 993

154 Misc.2d 660

The PEOPLE of the State of New York v. Calvin BLAKE, Defendant.

Criminal Court of the City of New York,

Kings County, AP 2.

June 1, 1992.

Elisa M. Irwin, Legal Aid Soc., Brooklyn, for defendant.

Charles J. Hynes, Dist. Atty. by Asst. Dist. Atty. Christopher Andrews, for the People.

LEE CROSS, Judge.

Defendant moves for dismissal of the accusatory instrument which charges a violation of Vehicle and Traffic Law Section 511. The motion to dismiss is granted.

The defendant is charged by way of an accusatory instrument printed on both sides of a blue square, entitled "Affidavit--General", Criminal Court of the City of New York, Form 29.1. This form has been in use since 1965 in the Criminal Court of the City of New York. ¹ One-half of the front of the form contains the docket number, defendant's name and similar information. It also contains a space to enter a guilty plea and sentence. The other half of this side contains spaces for adjournments. The opposite side of the form contains the police officer's affidavit detailing the date, time and place of the offense and a description of what occurred. In this case, the police officer swore that he saw the defendant driving a car on Church Avenue. He said that the official records of the New York State Department of Motor Vehicles state that the defendant's license to operate a motor vehicle was suspended in that the defendant had approximately 32 suspensions on 11 different dates.

The defendant was arraigned on these charges on May 8, 1992. No abstract of the defendant's driving record or other supporting deposition from the Department of Motor Vehicles has ever been filed in this case. Defendant moves to dismiss on the grounds that the accusatory instrument is defective, in that it is neither an information nor a simplified traffic information. Counsel is right that the form is defective. The particular form filed, which is commonly used in the Criminal Court of the City of New York, is not a simplified traffic information. A simplified traffic information is a slip of paper approximately four by eight inches in size, salmon in color, containing information specified by the Commissioner of Motor Vehicles. See 15 N.Y.C.R.R. Section 91.5; V.T.L. Section 207. By definition, it contains no factual allegations. C.P.L. Section 100.10(2)(a). It is given by the police officer directly to the defendant at the scene of the offense and is later filed in court. Pursuant to C.P.L. Section 100.25(2), a defendant who is given a simplified traffic information, may request that a supporting deposition, providing reasonable cause to believe that the offense was committed, be filed. The supporting deposition may be based either upon personal knowledge or upon information and belief, that is, upon hearsay. The People have 30 days to comply with the request. ² A failure timely to file the supporting deposition is a jurisdictional defect which requires dismissal. People v. Reiter, N.Y.L.J., Feb. 14, 1989, at 27, col. 3 (App.Term, 9th and 10th Jud.Dists.); People v. Gerloff, 145 Misc.2d 683, 547 N.Y.S.2d 544 (Just.Ct.West.County 1989). The accusatory instrument in this case does not meet the prescribed form and is clearly not a simplified traffic information. See, People v. Farley, 129 Misc.2d 925, 494 N.Y.S.2d 622 (Dist.Ct.Suff.County 1985).

C.P.L. Section 100.10 sets forth five types of accusatory instruments which can be used in a local criminal court. ³ In addition to the simplified traffic information (or simplified parks or environmental conservation informations), they are: a misdemeanor complaint, a felony complaint, a prosecutor's information and an information. The accusatory instrument in this case is clearly not a misdemeanor complaint or a felony complaint since the only charge contained in it is an infraction, not a misdemeanor or a felony. C.P.L. Section 100.10. It also does not fit within the parameters of a prosecutor's information, as that term is defined. And finally, the accusatory instrument is likewise defective as an information since this accusatory instrument contains hearsay, inasmuch as the police officer has to resort to the records of the Department of Motor Vehicles for information on the status of the defendant's license. C.P.L. Section 100.40(1). Thus, the accusatory instrument is defective and the motion to dismiss is granted.

There are three ways in which the People can properly charge a defendant with a violation of V.T.L. Section 511. They can file a simplified traffic information along with the affidavit of the police officer stating the facts which are normally contained in the square blueback mentioned above. This would constitute a simplified traffic information and the required supporting deposition, which can contain hearsay. The People can file the affidavit of the police officer along with an abstract or other nonhearsay affidavit from the Department of Motor Vehicles attesting to the suspension of the defendant's license. This would constitute an information. A prosecution can proceed to trial on either type of accusatory instrument. Finally, when the defendant is also to be charged with a related misdemeanor, the People can join in one accusatory instrument both the misdemeanor charge and the traffic infraction. ⁴ If that...