People v. Boback
| Decision Date | 22 November 1967 |
| Citation | 285 N.Y.S.2d 208,55 Misc.2d 318 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Joseph C. BOBACK, Jr., Defendant. |
| Court | New York County Court |
A. W. Schneider, Dist. Atty., Henry D. Blumberg, Asst. Dist. Atty., for the People.
Carl G. Scalise, Herkimer, for defendant.
From the record in this case, it would seem that a member of the New York State Police presented the defendant with a simplified traffic information charging him, at 3:15 P.M. on the 21st day of February, 1967, on Route 5 in the Town of Schuyler, County of Herkimer, in violation of Section 1129(a) of the New York State Vehicle & Traffic Law, following too closely. This simplified form would appear to have been sworn to on the 21st day of February, 1967 by Leon J. Cioch, Justice of the Peace. The simplified complaint was returnable on February 24th, 1967 at 7 P.M. before the Justice of the Peace, but according to the return filed in this case, the arraignment took place on February 21, 1967, the date of the alleged offense. However that may be, the return shows that the defendant was advised of his right to a bill of particulars, and he did not request one. Again on April 27, 1967, to which date this case had been adjourned, he and his attorney were again advised as to a bill of particulars, and through his counsel, he stated that he didn't want such a bill.
The matter proceeded to trial without such bill of particulars and solely upon the simplified traffic information. During the course of the trial it developed, by the sworn testimony of the witnesses involved, that the State Trooper who issued the simplified traffic information did not witness the accident in which this defendant was involved and by reason of which he was charged with following too closely, but came upon the scene a substantial time later and did not personally witness any part of the alleged charge against the defendant or the accident. Consequently, he must have got his information from someone else or from some other source. He didn't so state in the simplified traffic complaint, nor was there any affidavit or deposition attached to the simplified traffic complaint to show the source of his information and the foundation for his belief.
The People contend that Section 147--f of the Code of Criminal Procedure, which gives the defendant the right at his request for a bill of particulars, has been waived by the defendant in his failure to make such a request for a bill of particulars. The defendant contends that the simplified traffic complaint is defective in that it was based upon information and belief and was not bolstered or substantiated by any affidavits or depositions from which the information alleged in the complaint could have been obtained. The Court of Appeals, in People v. Weeks, 13 N.Y.2d 944, 244 N.Y.S.2d 316, 194 N.E.2d 132, reversed the order of the Cayuga County Court and upheld the form of simplified traffic information 'when coupled with the bill of particulars.' The holding of this court would then seem to be that such a simplified traffic information coupled with the bill of particulars, even though based upon information and belief, was sufficient to satisfy the statutory requirements.
By analogy, the Court of Appeals held that the simplified traffic information without a bill of particulars based upon information and belief was insufficient to satisfy the statutory requirements. We have been told for years that the defendant has nothing to prove in a criminal...
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