People v. Brady

CourtNew York District Court
Citation768 N.Y.S.2d 157,196 Misc.2d 993
Decision Date27 August 2003
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>DOREEN BRADY, Defendant.

196 Misc.2d 993
768 N.Y.S.2d 157

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
DOREEN BRADY, Defendant.

August 27, 2003.


[196 Misc.2d 994]

Legal Aid Society of Nassau County, Hempstead, for defendant.

Denis E. Dillon, District Attorney, Mineola, for plaintiff.

OPINION OF THE COURT

SUSAN T. KLUEWER, J.

Defendant's motion to dismiss the accusatory instrument as defective (see CPL 170.30 [1] [a]; 170.35 [1] [a]) on account of the arresting officer's claimed failure to timely serve and file supporting depositions in accordance with CPL 100.25 (2) and (3) is denied.

Defendant stands accused, by two simplified traffic informations joined under one docket, of, on June 5, 2002, violating Vehicle and Traffic Law § 509 (1) (driving without a license) and § 511 (1) (a) (aggravated unlicensed operation in the third degree). The former is a traffic infraction. The latter is a misdemeanor.

As I noted by interim order dated May 29, 2003, defendant was directed by the simplified traffic informations to appear in this court on July 17, 2002. Defendant appeared and was arraigned on that date. The matter was adjourned to August 21, 2002, by which time defendant was to have appeared with counsel. On August 21, 2002, I determined that defendant was eligible for assignment of counsel, and the Legal Aid Society was assigned as of that date. The case was adjourned to October 11, 2002 in the Legal Aid Part of this court. The file contains no written notice of appearance (but see 22 NYCRR 200.5), but there is no dispute that the Legal Aid Society is providing counsel for defendant. Nor is it disputed that, during the course of proceedings that took place on October 11, 2002 in the Legal Aid Part, the court permitted the service of a request, or "demand," for supporting depositions (see CPL 100.25 [3]). There is also no dispute that defendant immediately served the demand, a demand which bears the handwritten date of "10/11/02," but which does not bear either the endorsement of counsel or that of defendant personally

[196 Misc.2d 995]

(but see CPLR 2101 [d]). There is likewise no dispute that the court immediately ordered that supporting depositions be provided. Indeed, the court file bears the notation "supp dep ordered" with the date of "10/11/02," although that date appears to have been written over to read "10/15/02." The same "supp dep ordered" notation is made, apparently by the clerk, on the demand itself, although with this notation the date is clearly set forth as "10/15/02." A form "direction," which it is the practice of this court to issue, is contained in the court file. It requires the arresting state trooper to "submit" supporting depositions. It further provides that "said deposition[s] [are] to be served, within 30 days of the date the request was received by the court upon the defendant or the defendant's attorney. A copy of the supporting deposition, with proof of service shall be filed with the court." The document bears the date "10/15/02" and specifically designates "10/15/02" as the "date [defendant's] request rec."

According to documents that are filed with the court and that are submitted on this motion, the arresting state trooper served supporting depositions on October 25, 2002, well within the 30 days by which he was required to have done so (see CPL 100.25 [2]). He served them by mail at the address listed as defendant's on the simplified traffic informations. The arresting state trooper did not file the depositions, however, until November 13, 2002, 33 days after service of the demand on the court clerk, but only 29 days after the apparent effective date of the "order" directing that supporting depositions be supplied, the "order" that, in turn, misdesignates October 15, 2002 as the date the court received defendant's demand.

By motion made on April 7, 2003 (see CPLR 2211), defendant seeks dismissal of the simplified traffic informations. When originally made, her motion was premised solely on the ground that the supporting depositions were not timely filed, an untimeliness that she asserted renders the simplified traffic informations jurisdictionally defective, thus mandating dismissal. Failing to appreciate the distinction between service and filing, the People by their initial opposition accepted as fact the unmade assertion that the supporting depositions were served three days late, but nonetheless opposed the motion on the ground that, because defendant did not make her motion within the time allotted by a blanket stipulation between the Legal Aid Society and the District Attorney concerning pretrial motions (cf. CPL 255.20), she waived "the right to dismiss the accusatory instrument."

[196 Misc.2d 996]

Because counsel failed to address the issues that this motion presents, by the above-noted interim order of May 27, 2003, I directed that each side submit a memorandum...

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10 practice notes
  • People v. Utsett, 2016-0308
    • United States
    • New York County Court
    • July 21, 2016
    ...the Court for "good cause" shown to serve the request within 90 days of her first required court appearance. People v Brady, 196 Misc 2d 993, 998 (NY Dist Ct 2003); Criminal Procedure Law § 100.25, Practice Commentaries, Preiser 2013. More importantly, CPL § 100.25 requires that t......
  • People v. Utsett
    • United States
    • New York City Court
    • July 21, 2016
    ...leave from the Court for “good cause” shown to serve the request within 90 days of her first required court appearance. People v. Brady, 196 Misc.2d 993, 998, 768 N.Y.S.2d 157 (N.Y.Dist.Ct.2003) ; Criminal Procedure Law § 100.25, Practice Commentaries, Preiser 2013. More importantly, CPL § ......
  • People v. Lewis, 2008 NY Slip Op 52171(U) (N.Y. 11/5/2008), 2007NA029590
    • United States
    • United States Court of Appeals (New York)
    • November 5, 2008
    ...defense counsel in the case, is proper. See: People v. Bruce, 4 Misc 3d 1024, 798 NYS2d 346 (Dist.Ct Nassau Co. 2004); People v. Brady, 196 Misc 2d 993, 768 NYS2d 157 (Dist.Ct. Nassau Co. 2003); People v. Rossi, 154 Misc 2d 616, 587 NYS2d 511 (Just. Ct. Muttontown1992); People v. Scherbner,......
  • People v. Zappula
    • United States
    • New York Justice Court
    • July 17, 2013
    ...in the matter. People v. Nuccio, 78 N.Y.2d 102, 571 N.Y.S.2d 693, 575 N.E.2d 111; Mazzeo, supra, 2005 WL 3240312; People v. Brady, 196 Misc.2d 993, 997, 768 N.Y.S.2d 157. CPL § 100.25(2), which specifies the requirements regarding supporting depositions, does not say how the request must be......
  • Request a trial to view additional results
10 cases
  • People v. Utsett, 2016-0308
    • United States
    • New York County Court
    • July 21, 2016
    ...the Court for "good cause" shown to serve the request within 90 days of her first required court appearance. People v Brady, 196 Misc 2d 993, 998 (NY Dist Ct 2003); Criminal Procedure Law § 100.25, Practice Commentaries, Preiser 2013. More importantly, CPL § 100.25 requires that t......
  • People v. Utsett
    • United States
    • New York City Court
    • July 21, 2016
    ...leave from the Court for “good cause” shown to serve the request within 90 days of her first required court appearance. People v. Brady, 196 Misc.2d 993, 998, 768 N.Y.S.2d 157 (N.Y.Dist.Ct.2003) ; Criminal Procedure Law § 100.25, Practice Commentaries, Preiser 2013. More importantly, CPL § ......
  • People v. Lewis, 2008 NY Slip Op 52171(U) (N.Y. 11/5/2008), 2007NA029590
    • United States
    • United States Court of Appeals (New York)
    • November 5, 2008
    ...defense counsel in the case, is proper. See: People v. Bruce, 4 Misc 3d 1024, 798 NYS2d 346 (Dist.Ct Nassau Co. 2004); People v. Brady, 196 Misc 2d 993, 768 NYS2d 157 (Dist.Ct. Nassau Co. 2003); People v. Rossi, 154 Misc 2d 616, 587 NYS2d 511 (Just. Ct. Muttontown1992); People v. Scherbner,......
  • People v. Zappula
    • United States
    • New York Justice Court
    • July 17, 2013
    ...in the matter. People v. Nuccio, 78 N.Y.2d 102, 571 N.Y.S.2d 693, 575 N.E.2d 111; Mazzeo, supra, 2005 WL 3240312; People v. Brady, 196 Misc.2d 993, 997, 768 N.Y.S.2d 157. CPL § 100.25(2), which specifies the requirements regarding supporting depositions, does not say how the request must be......
  • Request a trial to view additional results

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