People v. Born

• Decision Date: 08 August 1995
• Citation: 634 N.Y.S.2d 915,166 Misc.2d 757
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Ellie J. BORN, Defendant.
• Court: New York Justice Court

Page 915

634 N.Y.S.2d 915

166 Misc.2d 757

The PEOPLE of the State of New York, Plaintiff, v. Ellie J. BORN, Defendant.

Justice Court, Town of Perinton,

Monroe County.

Aug. 8, 1995.

Howard R. Relin, District Attorney of Monroe County (Catherine Cerulli, of counsel), for plaintiff.

Thomas D. Cook, Pittsford, for defendant.

GARY W. ROOD, Judge.

The Defendant in the above-entitled action is charged with failing to stop, as required, while facing a steady circular red signal in violation of Vehicle and Traffic Law ("V & T Law") § 1111(d)(1), a traffic infraction more commonly described and referred to as "passing a red light". The Defendant has moved to dismiss the simplified traffic information pursuant to Criminal Procedure Law ("CPL") Sections 170.30[1](f) and 170.35[1](a) upon the ground that the supporting deposition served pursuant to the Defendant's timely request is insufficient, inadequate and defective as a manner of law.

The court concludes that the supporting deposition served and filed in this action is legally insufficient, and therefore defective, as a matter of law and the simplified information should be dismissed.

For a supporting deposition to the simplified traffic information to be sufficient, it must contain (1) factual allegations of an evidentiary character which support or tend to support the charge or charges asserted in the simplified traffic information, as required by CPL § 100.20, and (2) factual allegations providing reasonable cause to believe that the Defendant committed the offense or offenses charged, as required by CPL § 100.25[2] (People v. Hohmeyer, 70 N.Y.2d 41, 43-44, 517 N.Y.S.2d 448, 510 N.E.2d 317). The factual allegations may be based upon personal knowledge or upon information and belief (CPL §§ 100.20 & 100.25[2] and must provide reasonable cause to believe that the Defendant committed every necessary element of the offense charged (People v. Key, 87 Misc.2d 262, 266, 391 N.Y.S.2d 781 [Sup.Ct., App. Term, 2nd Dep't, 1976], aff'd 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 [1978]; People v. Hust, 74 Misc.2d 887, 890, 346 N.Y.S.2d 303 [Cty.Ct., Broome Cty., 1973].

CPL § 70.10[2] provides " '[r]easonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it " (emphasis supplied) and "such apparently reliable evidence may include or consist of hearsay" except as otherwise provided in the CPL.

As this court recently pointed out in People v. Smith, 163 Misc.2d 353, 361, 621 N.Y.S.2d 449, the Court of Appeals' ruling in Hohmeyer, supra, 70 N.Y.2d at 43-44, 517 N.Y.S.2d 448, 510 N.E.2d 317, makes the pleading sufficiency requirements for a supporting deposition to a simplified traffic information virtually identical to the pleading sufficiency requirements for the factual part of a misdemeanor complaint (see CPL §§ 100.15[3], 100.20, 100.25[2] & 100.40[4] ). The factual part of a misdemeanor complaint, a felony complaint or an information, together with any accompanying supporting deposition, must contain allegations of fact of an evidentiary nature supporting or tending to support the charge or charges, which provide reasonable cause to believe the defendant committed the offense, or offenses, charged in the accusatory instrument (CPL §§ 100.15[3], 100.20 & 100.40[1](a) & [4]. ¹ In any such case, the allegations of fact providing reasonable cause to believe the defendant committed the offense, or offenses, charged may be based either upon personal knowledge or upon information and belief, the same as is required in the case of a supporting deposition to a simplified traffic information (CPL §§ 100.15[3], 100.20 & 100.25[2]; People v. Hohmeyer, supra at 43-44, 517 N.Y.S.2d 448, 510 N.E.2d 317). ²

Determinations of the sufficiency of accusatory instruments and supporting depositions to simplified informations are not the only times the court is called upon to determine whether there is "reasonable cause to believe the defendant committed the offense charged". The court must make such determination when asked to issue an arrest warrant. In such a case, the court must determine whether the accusatory instrument, which must be other than a simplified traffic information, is sufficient on its face (CPL § 120.20[1], i.e., whether its factual allegations, together with those of any supporting depositions, provide reasonable cause to believe that the sought defendant committed the offense charged.

Likewise, in the context of a suppression hearing when a defendant asserts an arrest was made without probable cause, the court must determine if there was probable cause for the defendant's arrest. ³ The Court of Appeals has pointed out that when the subject of a suppression hearing is evidence which is the product of a warrantless arrest or seizure, "the suppression court's probable cause analysis is essentially 'the same as that used by a magistrate in passing on an application for an arrest or search warrant' " (People v. Parris, 83 N.Y.2d 342, 346, 610 N.Y.S.2d 464, 632 N.E.2d 870, citing People v. Dodt, 61 N.Y.2d 408, 415, 474 N.Y.S.2d 441, 462 N.E.2d 1159).

In the context of a suppression hearing, probable cause does not require legal proof of guilt beyond a reasonable doubt, but rather, information sufficient to support a reasonable belief that an offense has been or is being committed (People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451). Probable cause may be supplied, in whole or in part, through hearsay information but where probable cause is based upon hearsay, it must meet the requirements of the Aguilar- Spinelli rule (People v. Johnson, 66 N.Y.2d 398, 402, 497 N.Y.S.2d 618, 488 N.E.2d 439; People v. Bigelow, supra, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451; see Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637). The two prong test of the Aguilar- Spinelli rule requires that it be established that the informant had some basis for the knowledge transmitted to the police and that the informant was reliable (People v. Bigelow, supra, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451; People v. Parris, supra, 83 N.Y.2d at 346, 610 N.Y.S.2d 464, 632 N.E.2d 870).

When the court is presented with an accusatory instrument or a supporting deposition to a simplified information which contains factual allegations based upon information and belief, it is in a similar position as when proof of probable cause, which is based upon hearsay, is presented at a suppression hearing. The only difference is that in the former, the factual allegations providing reasonable cause to believe the defendant committed the offense charged must be contained within the written instrument. Accordingly, where an accusatory instrument or a supporting deposition to a simplified information contains factual allegations based upon information and belief and the source of the information is an informant, the two prong test of the Aguilar- Spinelli rule should be applied in determining whether the factual allegations provide reasonable cause to believe the defendant committed the offense charged.

To provide such reasonable cause to believe the defendant committed the offense charged to exist, the factual allegations of the written instrument must present information "which appears reliable" (CPL § 70.10[2]. Fo...