People v. Chess
| Decision Date | 09 January 1991 |
| Citation | 565 N.Y.S.2d 416,149 Misc.2d 430 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Quintus CHESS, Defendant. |
| Court | New York Justice Court |
John Gionis, East Norwich, for people.
Gustave Lippman, Larchmont, for defendant.
On February 23, 1989, at approximately 10:00 A.M., the defendant received a simplified traffic information charging him with violating Vehicle and Traffic Law Section 1180(d), alleging that he was speeding at a rate of 42 m.p.h. in a 25 m.p.h. zone within the Village of Kensington.
The facts are not in dispute. On or about March 1, 1989, the defendant mailed Uniform Traffic Ticket # TK 7001105 to the Court, with part "B" completed, thereby entering his plea of "not guilty". He checked the box on the ticket indicating his request for a supporting deposition. On or about April 14, 1989, a supporting deposition was served upon the defendant. Neither the simplified traffic information nor the supporting deposition indicated that radar was used to determine defendant's speed.
On or about January 3, 1990, defendant filed a motion for dismissal on two grounds: that the supporting deposition was not served within thirty days of the demand for same, and that the failure to inform defendant that radar was used to measure his speed rendered the supporting deposition defective, thereby rendering the simplified traffic information fatally defective. The motion is opposed by the Village Prosecuting Attorney.
C.P.L. Section 100.25(2) states:
"Upon such a request [for a supporting deposition], the court must order the complainant police officer or public servant to serve a copy of such supporting deposition upon defendant or his attorney, within thirty days of the date such request is received by the court ..." (Emphasis added)
This Court held defendant's motion in abeyance to await a determination by the Appellate Term in the matter of People v. Bart Thumser, which decision appeared on page 30 of the New York Law Journal on October 26, 1990. Although the Thumser decision is helpful, it appears to be intended for "local criminal courts", with or without multiple parts, which sit on a daily or weekly basis. As the Village Court of Kensington is in session only one evening per month, this Court cannot function in the same manner as a court which sits more frequently. In Thumser, the Appellate Term, relying upon 22 N.Y.C.R.R. 200.4, concluded that delivery of a demand for a supporting deposition to the Clerk is the equivalent of delivery to the court, as it assumed such demand would be (or could be) delivered forthwith to the Judge (or a Judge). Such assumption is erroneous for a court sitting only once a month.
This Court takes judicial notice of the fact that its March, 1989 session was held on Monday, March 20, 1989. The Court believes that the legislature intentionally required that "... the Court must order ..." the supporting deposition to be served and filed within thirty (30) days of the demand. If the legislature merely intended the thirty day period to run from receipt of the request by a Clerk or other non-judicial employee, without court involvement, it could have so stated without requiring the court to order compliance. Although it is understood that Thumser, supra, rejected the need for a formal application or a formal Order, the legislature clearly intended that compliance be ordered by the Court, not merely requested by the defendant. Consequently, since the supporting deposition was received by the defendant within thirty days of the March 20, 1989 session of the Village Court of Kensington, the first opportunity that this Court had to order compliance, I hold that the requirements of C.P.L. Section 100.25(2)(a) were met and that service was timely.
In People v. Aucello, 146 Misc.2d 417, 558 N.Y.S.2d 436 (1990) the Appellate Term held that failure to comply with the requirements of C.P.L. 100.25(2), is a jurisdictional, unamendable and fatal defect which cannot be cured by allowing additional time for compliance, or by commencement of a new prosecution on new pleadings. It is noteworthy, however, that the motions in both Aucello and Thumser, were made prior to the service of any supporting deposition. In the matter before this Court, while the supporting deposition was served approximately forty-four days after the demand, it was served some nine months prior to the making of the motion. No prejudice has been alleged by the defendant, nor can this Court conceive of how he was prejudiced by receiving the supporting deposition nine months prior to his motion. No cases have been found involving that specific issue, and this Court now holds that, in the absence of prejudice, service of a supporting deposition within thirty days of the...
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