People v. Fattizzi
| Decision Date | 05 June 1978 |
| Citation | 98 Misc.2d 288,413 N.Y.S.2d 804 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Frank FATTIZZI, Appellant. |
| Court | New York Supreme Court |
Jack B. Solerwitz and Leonard B. Isaacs, Mineola, for appellant.
Denis Dillon, Dist. Atty., Herbert H. Esrick, Mineola, and Frederick J. Annibale, Jr., Levittown, for respondent.
Before GLICKMAN, P. J., and GAGLIARDI and SILBERMAN, JJ.
Judgment of conviction affirmed.
Defendant, charged with the traffic infraction of speeding (Vehicle and Traffic Law § 1180, subd. (d)), made a timely request for a supporting deposition. The deposition was not served and at trial defendant orally moved to dismiss based upon such failure. The motion was denied, the matter proceeded to trial and defendant was convicted of the charge. On this appeal, defendant contends that the information is defective and his motion should have been granted.
The failure to serve a supporting deposition renders a simplified traffic information insufficient on its face (CPL 100.40, subd. (2)) and subject to a motion to dismiss (CPL 170.30, subd. 1, par. (a), 170.35, subd. 1, par. (a)). However, such a motion must be in writing and upon reasonable notice to the People (CPL 170.45, 210.45; cf. People v. DeRosa,42 N.Y.2d 872, 397 N.Y.S.2d 780, 366 N.E.2d 868). Moreover, the motion should generally be made before commencement of trial, but in no event can the court entertain the motion after sentence has been imposed (CPL 255.20, subds. 1, 3).
The question which arises is whether the failure to make a timely motion in writing precludes the issue of a defective information from being raised on appeal, especially in view of the language of the Court of Appeals in People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 and People v. Harper, 37 N.Y.2d 96, 371 N.Y.S.2d 467, 332 N.E.2d 336 to the effect that a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.
It is our opinion that where a defendant fails to make a timely written motion to dismiss an information and is thereafter tried and found guilty upon proof which establishes all the elements of the crime, he may not raise the defect on an appeal from the judgment of conviction (People v. Willett, 213 N.Y. 368, 375, 107 N.E. 707, 708; People v. Grimsley, 60 A.D.2d 980, 401 N.Y.S.2d 643; People v. Key, 87 Misc.2d 262, 391 N.Y.S.2d 781; People v. Palotta, N.Y.L.J. December 16, 1977 (App.Term, 9th and 10th Jud. Dists.); People v. Eric K., N.Y.L.J. December 4, 1975 (App.Term, 2nd and 11th Jud. Dists.); People v. Friday, N.Y.L.J. April 21, 1975 (App.Term, 2nd and 11th Jud. Dists.); cf. People v. Strassner, 299 N.Y. 325, 328, 87 N.E.2d 280, 281). To hold otherwise would render the statutory provisions as to the time and manner of raising the defect completely meaningless.
A different result is reached where the information does not allege all the elements of the crime and defendant pleads guilty rather than electing to go to trial. A plea of guilty admits only those facts contained in the factual part of the information (People v. Williams, 135 Misc. 564, 566, 238 N.Y.S. 712, 716). Thus, the judgment of conviction must be attacked upon the ground that defendant has not been convicted of a crime, even though no motion was made to dismiss the information (e. g. People v. Case, supra). To the same effect would be a situation where defendant goes to trial under such an information and the People establish only those elements alleged therein. Here, too, the failure to make a timely motion to dismiss the information would not preclude defendant from alleging on appeal that he has not been convicted of a crime. Additionally, we note that a defendant may, for the first time on appeal, argue that he was convicted of a crime never...
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...in writing, in the form of a letter memorandum from defense counsel to the court dated November 4, 1988. See also, People v. Fattizzi, 98 Misc.2d 288, 413 N.Y.S.2d 804 (App.T., 9th and 10th Dists.1978). However, the motion was not made upon "notice to the people," as the statutes and case l......
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...a syringe or a needle or both is not specified, though the omission of this particular is not fatal.3 People v. Fattizzi, 98 Misc.2d 288, 413 N.Y.S.2d 804 (App.Term, 2d Dept, 1978), and People v. Poll, 94 Misc.2d 905, 405 N.Y.S.2d 943 (Dist.Ct., Suffolk County, 1978), while holding that the......
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