People v. Boback

• Decision Date: 21 November 1968
• Parties: , 243 N.E.2d 135 The PEOPLE of the State of New York, Appellant, v. Joseph C. BOBACK, Jr., Respondent. The PEOPLE of the State of New York, Appellant, v. Rudolph W. MARKWART, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 912

295 N.Y.S.2d 912

23 N.Y.2d 189, 243 N.E.2d 135

The PEOPLE of the State of New York, Appellant, v. Joseph C. BOBACK, Jr., Respondent.

The PEOPLE of the State of New York, Appellant, v. Rudolph W. MARKWART, Respondent.

Court of Appeals of New York.

Nov. 21, 1968.

Albert W. Schneider, Dist. Atty. (Henry D. Blumberg, Herkimer, of counsel), for appellant in both actions.

No appearance for respondent in the first above-entitled action.

Carl G. Scalise, Herkimer, for respondent in the second above-entitled action.

KEATING, Judge.

Is the use of the Simplified Traffic Information (Code Crim.Proc., § 147--a et seq.) authorized where the information is based solely upon information and belief, and, if so, is its employment constitutional? These are the questions raised by two cases from the Herkimer County Court.

Boback was convicted of the offense of 'Following Too Closely' (Vehicle and Traffic Law, Consol.Laws, c. 71, § 1129, subd. (a)) and was fined $20. On February 21, 1967, about 3:15 P.M., defendant was driving on Route 5 in the Town of Schuyler and became involved in an accident. Thereafter, he was presented with a Uniform Traffic Ticket. Defendant appeared before a Justice of the Peace and, at the arraignment, was advised of his right to a bill of particulars (Code Crim.Proc., § 147--f). Again, on the date of trial on April 27, 1967, the same advice was given the defendant. Through his counsel, he stated that he did not want a bill of particulars. The trial proceeded. During its course, it developed that the State Trooper who made the Simplified Traffic Information did not witness the accident in which this defendant was involved, but came upon the scene a substantial time later. It was clear that the trooper had obtained his information from someone else. The Simplified Traffic Information did not so state, nor was there any affidavit or deposition attached to the information so show the source of his information and the foundation for his belief.

Boback appealed his conviction before the Justice of the Peace to the Herkimer County Court which held the Simplified Traffic Information defective, based, as it was, upon information and belief, and, therefore the Magistrate was deprived of jurisdiction under People v. James, 4 N.Y.2d 482, 176 N.Y.S.2d 323, 151 N.E.2d 877; People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901, and People v. Schwer, 7 N.Y.2d 838, 196 N.Y.S.2d 711, 164 N.E.2d 727.

In the second case, Markwart was charged and convicted of leaving the scene of an accident (Vehicle and Traffic Law, § 600), a misdemeanor, was fined $100, and his license was revoked. The fact pattern is not materially different from that in the Boback case. Relying on his earlier decision in the Boback case, the County Court Judge reversed the conviction and dismissed the information. ¹

The orders of the Herkimer County Court in both cases should be reversed and the judgments of conviction reinstated.

In People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901, supra, the absence of a verified information on a misdemeanor traffic charge was fatal to the jurisdiction of Special Sessions even though the information was not used to support an arrest, but solely as a pleading, while in People v. James (supra) a sworn information charging a misdemeanor based entirely on information and belief was also held insufficient as a pleading. (See, also, People v. Schwer, 7 N.Y.2d 838, 196 N.Y.S.2d 711, 164 N.E.2d 727, supra, and People v. Jeffries, 19 N.Y.2d 564, 281 N.Y.S.2d 67, 227 N.E.2d 870.)

This court, however, has already held 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 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. We 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).

The County Court here as well as other nisi prius courts have read Weeks as approving the use of a verified bill of particulars to cure a defective information (People v. D'Agostino, 52 Misc.2d 448, 276 N.Y.S.2d 183; People v. Groos, 53 Misc.2d 185, 278 N.Y.S.2d 468) or where an offense[243 N.E.2d 138] --as contrasted with a misdemeanor--is involved (People v. D'Agostino, supra; People v. Groos, supra). Where the bill is not verified (People v. Radak, 52 Misc.2d 300, 275 N.Y.S.2d 937; People v. Groos, supra; People v. Sack, 54 Misc.2d 815, 283 N.Y.S.2d 402, contra; People v. Baratta, 56 Misc.2d 447, 288 N.Y.S.2d 976) or no bill of particulars has been filed prior to the motion to dismiss, the information must be dismissed (People v. D'Agostino, supra). While in Weeks a verified bill of particulars was served, the opinion does not speak of there being any 'defect' in the information. Moreover, the motion to dismiss was made prior to any demand or service of a bill of particulars. Weeks did not rest on the narrow basis upon which the County Court distinguished it. The cases cited by that court in support of its decision were all decided prior to the passage in 1962 of the sections authorizing the use of Simplified Traffic Informations.

The statutory scheme indicates that it applies in all traffic cases, whether or not the information is issued by an officer having personal knowledge of the violation or the events surrounding the violation. Certainly, there is nothing explicit in the statute which purports to limit its scope in the manner asserted. The sample Simplified Traffic Information, set forth in section 147--e, nowhere requires the officer to state whether the information is based upon information and belief.

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, which mandates the service of a bill of particulars upon demand, nor section 147--g, which sets forth what the bill must contain, requires that the bill of particulars be verified or that it be made by a person having personal knowledge of the events. The officer is required to take an oath only if he is called to give testimony at the trial. Consequently, there would appear to be no reason to draw the distinction, which the defendant urges, since in no event would he ever be protected by the 'sanction of an oath'. ²

In his memorandum of approval of chapter 605 of the Laws of 1962, the Governor stated that the bill 'will permit the Commissioner of Motor Vehicles to prescribe a simplified form of an information or complaint which Would serve as a short form pleading and which would be combined with the uniform ticket in a packet' (emphasis supplied; 2 McKinney's Session Laws of New York, 1962, p. 3643). Since the information is to be used as a pleading only, there was no constitutional compulsion for the Legislature to limit the use of the Simplified Traffic Information to those cases where the officer had some personal knowledge of the violation. That it was the intent to override the pre-existing law is made clear in the Governor's memorandum: 'Pursuant to Section 207 of the Vehicle and Traffic Law, the Commissioner of Motor Vehicles is presently authorized to prescribe the form of a uniform traffic summons and complaint. The uniform complaint to be prescribed by the Commissioner was intended to be used in a packet with the uniform...