People v. Blasier, 2010 NY Slip Op 30660(U) (N.Y. Dist. Ct. 3/28/2010)
| Decision Date | 28 March 2010 |
| Docket Number | No. 47569.,47569. |
| Citation | 2010 NY Slip Op 30660 |
| Parties | People of the State of New York, v. David S. Blasier, Defendant. |
| Court | New York District Court |
DANIEL C. WILSON, City Court Judge.
The defendant has moved this court by a motion which was filed with the court on January 8, 2010 and which was duly submitted to the court for decision on January 15, 2010 for an order seeking dismissal of the accusatory instruments pursuant to §170.35 of the Criminal Procedure Law, for discovery and inspection of certain listed items or alternatively for preclusion, and for disclosure of exculpatory material pursuant to federal and state case law, and for relief pursuant to People vs. Sandoval, 34 NY 2d 371 (1974) and People v. Ventimiglia, 52 N.Y. 2nd 350 (1981) as to the use for cross examination purposes or upon the direct case of the people of any prior criminal convictions and/or bad acts of the defendant at a trial of this action, and for suppression of alleged oral and written statements and for suppression of items of physical evidence and testimonial evidence as being obtained in violation of the defendant's rights under the United States and New York State Constitutions, and for leave to submit memoranda of law following the hearing herein, and for leave to submit any further motions necessitated by the relief obtained from this motion. The People have opposed said motion by an answering affirmation which was filed with the court, and after due deliberation, the court determines the defendant's motion as follows:
The defendant's motion for relief pursuant to People vs. Sandoval, supra and People v. Ventimiglia, supra, will be granted insofar as the People will be directed to serve upon the defendant and file with the court a list of all prior criminal convictions and/or bad acts of the defendant which they intend to use for cross examination purposes or upon their direct case at a trial of this action. Such list shall be served and filed by a date to be fixed by the court within three days of trial. At such time, the court will determine which, if any, of said list may be used for such purposes at the trial of this action. Pending said in camera ruling, said motion would be in all other respects denied. The defendant also requests a copy of the Criminal Justice Services report, but the court will note that the report was supplied to the defense attorney in open court pursuant to the provisions of the Criminal Procedure Law.
The defendant's motion for suppression of items of certain unnamed evidence will be denied without a hearing since the defendant has failed to establish grounds for the ordering of a hearing. A defendant has the burden as to items of physical evidence of establishing standing by demonstrating a personal legitimate expectation of privacy. People v. Whitfield 81 N.Y. 2nd 904; People v. Wesley 73 N.Y. 2nd 351. As stated in Whitfield CPL §710.60(1) requires that a defendant's motion to suppress contain sworn allegations sufficient to raise standing as an issue of fact and avoid summary judgment under CPL §710.60(3). The motion papers only refer to the probable cause for arresting the defendant, but do not assert that the defendant had any possessory interest in any property or any other expectation of privacy.
The defendant's motion to suppress oral statements of the defendant will be granted insofar as a hearing will be scheduled to determine said issues on May 19, 2010 at 11:00 A.M., but pending said hearing, said motion would be in all other respects denied.
The defendant has also moved to dismiss the simplified traffic information for being based upon hearsay, but cites inapplicable sections of the Criminal Procedure Law in support of such.
§100.25(2) of the Criminal Procedure Law states as follows:
2. A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged.
The supporting deposition meets the requirements of
I. CPL 100.25 (2). in that it contains factual allegations "providing reasonable cause to believe that the defendant committed the offense or offenses charged". People v. Hohmeyer, 70 N.Y. 2nd 41 (1987).
The Court of Appeals has held even before the inception of the Criminal Procedure Law that the use of the Simplified Traffic Information is authorized where the information is signed by an officer whose knowledge of the facts is based upon information and belief. In 1. People v. Weeks, 13 N.Y.2d 944. 244 N.Y.S.2d 316, 194 N.E.2d 132, defendant was issued a Simplified Traffic Information under section 147-g of the Code of Criminal Procedure for speeding. The information did not state that it was based upon information and belief and it was not accompanied by supporting affidavits. Defendant pleaded not guilty and requested a bill of particulars which was supplied in the form of supporting affidavits, including one by the officer who operated the radar unit. The County Court had held the information defective since it did not state that it was based upon information and belief and it was not accompanied by supporting affidavits. This defect, the court stated, was not cured by the bill of particulars. The Court of Appeals reversed: `The challenged simplified traffic information, being substantially in the form prescribed by the Commissioner of Motor Vehicles pursuant to section 207 of the Vehicle and Traffic Law, when coupled with the bill of particulars of the violation charged filed by the peace officers, was sufficient to inform defendant and the court of the nature and character of the violation with which defendant was charged and to satisfy the applicable statutory requirements' (supra, p. 945, 244 N.Y.S.2d p. 317, 194 N.E.2d p. 132). People v. Boback, 23 N.Y. 2nd 189 (1968).
Traditionally, the purpose of the rule requiring verified informations by persons competent to testify to the facts contained therein is to deter the bringing of baseless prosecutions by demanding `that criminal proceedings be underpinned by `the sanction of an oath and subject to the penalty for perjury if willfully false". (People v. Jeffries, supra, 19 N.Y.2d p. 567, 281 N.Y.S.2d p. 69, 227 N.E.2d p. 872, quoting People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 291, 79 N.E. 330, 333, 10 L.R.A., N.S., 159.) Logically, if that be the goal, it should also apply to informations used as pleadings. In the case of the Simplified Traffic Information statute, however, that basic policy is not achieved even where the arresting officer has personal knowledge. Neither section 147-f of the prior Code of Criminal Procedure, which mandated the service of a bill of particulars upon demand, nor section 147-g of that same statute, which set forth what the bill must contain, required that the bill of particulars be verified or that it be made by a person having personal knowledge of die events. The officer was required to take an oath only if he is called to give testimony at the trial. Consequently, the Boback case held that there would appear to be no reason to draw the distinction since in no event would he ever be protected by the `sanction of an...
To continue reading
Request your trial