People v. Dillin
| Decision Date | 30 August 1990 |
| Docket Number | AP-1 |
| Citation | 560 N.Y.S.2d 940,148 Misc.2d 311 |
| Parties | The PEOPLE of the State of New York v. Wayne DILLIN, Defendant |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York County (John J. Sullivan III, of counsel), New York City, for people.
Herbert L. Weisman, Weisman & Weisman, New York City, for defendant.
Defendant is charged in an information with Operating a Motor Vehicle While Under the Influence of Alcohol (DWI), VTL 1192(2) and 1192(3). Defendant moves to dismiss the information arguing that the charges in the accusatory instrument are not those specified in the Desk Appearance Ticket issued to him upon his arrest and that the People may not charge him with offenses not specified in that Desk Appearance Ticket.
On April 5, 1990, defendant was arrested by an officer of the Port Authority Police Department and issued a Desk Appearance Ticket pursuant to CPL Article 150 requiring him to appear in Criminal Court on April 25, 1990. The Desk Appearance Ticket specified that the offenses charged were "DWI, Unregistered Vehicle, Pass on Right VTL 1194, 401, 1123." When defendant appeared in court on April 25, 1990, he was arraigned on an accusatory instrument charging him with Operating a Motor Vehicle While Under the Influence of Alcohol (DWI), VTL 1192(2) and 1192(3), and Unregistered Vehicle, VTL 401(1). The VTL 401(1) charge was dismissed at arraignment.
CPL 150.50(1) requires that, where a Desk Appearance Ticket is issued, a local court accusatory instrument must be filed with the local criminal court in which the ticket is returnable on or before the date specified for defendant's appearance "charging the person named in the appearance ticket with the offense specified therein" (emphasis added). In this case, the accusatory instrument charges defendant with only one of the three VTL offenses specified by statutory section number in the appearance ticket (VTL 401) and in addition, two offenses not specified by statutory section number but specified by title in that ticket, Operating a Motor Vehicle While Under the Influence of Alcohol, (DWI), VTL 1192(2) and 1192(3).
The issue before the Court is whether, in a case where defendant's presence was obtained by the issuance of an appearance ticket, the statute prohibits the filing of an accusatory instrument charging offenses not specified in that appearance ticket. Our research has disclosed no decisional authority on this issue. 1 The People argue, in opposition to defendant's motion, that, as the CPL authorizes the filing of superseding accusatory instruments, the People may file an accusatory instrument charging any offenses supported by legally sufficient allegations of fact and are not bound by the offenses specified by the arresting officer in the appearance ticket. Defendant argues that CPL 150.50(1) limits the People to charging only those offenses specified in the appearance ticket.
For the following reasons this Court holds that, where, as here, a defendant's appearance in court is obtained by the issuance of an appearance ticket, the People may file and defendant may be prosecuted on an accusatory instrument which is sufficient under CPL 100.40 charging any offense based on the conduct for which the defendant was arrested and the People are not limited to charging the offenses specified in the appearance ticket.
In this case, it is clear that defendant was arrested for driving while intoxicated from the use of alcohol, as the appearance ticket's abbreviation "DWI" reflects. The arresting officer, however, instead of specifying the VTL section numbers 1192(2) and 1192(3) defining the offenses of driving while intoxicated, in error specified the section charged as "VTL 1194", a procedural section of the VTL relating to arrest and testing. Accordingly, the accusatory instrument does charge the driving while intoxicated offense specified in the appearance ticket by title of the offense and corrects the erroneous VTL section number set forth in the appearance ticket. On this ground alone, it can be said that the accusatory instrument charges only those offenses specified in the appearance ticket.
Alternatively, if the Court did not consider the clear drafting error in the appearance ticket and were to view the accusatory instrument as charging offenses not specified in the appearance ticket, the accusatory instrument would still be authorized under the statute. While an argument can be made that the language of CPL 150.50(1) limits the accusatory instrument to charging only offenses specified in the appearance ticket, an argument can also be made that CPL 150.50(1) simply requires that the accusatory instrument charge, at a minimum, the offenses specified in the appearance ticket, but does not prohibit the charging of additional offenses not specified in the appearance ticket....
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People v. Brisotti, BTP-11
...acquire personal jurisdiction once a defendant appears, regardless of how that presence is secured. People v. Dillin, 148 Misc.2d 311, 314-15, 560 N.Y.S.2d 940 (Crim.Ct., N.Y.Co.1990); People v. Gross, 148 Misc.2d 232, 239, 560 N.Y.S.2d 227 (Crim.Ct., N.Y.Co.1990); People v. MacFarlene Co.,......
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People v. Consolidated Edison Co.
...be filed by that date, for it is the "legal prerequisite to the commencement of a criminal prosecution". People v. Dillin, 148 Misc.2d 311, 314, 560 N.Y.S.2d 940 (Crim.Ct.N.Y.Co.1990). Indeed, "it is the prosecutor, not the arresting officer, who is charged with the duty and responsibility ......
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People v. Consolidated Edison Co. of New York, Inc.
...supra, at 866, 566 N.Y.S.2d 992). The nature and function of the appearance ticket is further reflected in People v. Dillin, 148 Misc.2d 311, 560 N.Y.S.2d 940 (N.Y.City Crim.Ct.1990). In that case the People filed an accusatory instrument charging offenses not specified in the appearance ti......
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People v. Fysekis
...of a criminal action (see, McClellan v. New York City Tr. Auth., 111 Misc.2d 735, 444 N.Y.S.2d 985; see also, People v. Dillin, 148 Misc.2d 311, 314, 560 N.Y.S.2d 940). A criminal action commences with the filing of an accusatory instrument, i.e., an indictment, an information, a simplified......