People v. Gabbay

• Decision Date: 31 October 1997
• Citation: 175 Misc.2d 421,670 N.Y.S.2d 962
• Parties: , 1998 N.Y. Slip Op. 98,115 The PEOPLE of the State of New York, Respondent, v. James GABBAY, Appellant.
• Court: New York Supreme Court — Appellate Term

Page 962

670 N.Y.S.2d 962

175 Misc.2d 421, 1998 N.Y. Slip Op. 98,115

The PEOPLE of the State of New York, Respondent, v. James GABBAY, Appellant.

Supreme Court, Appellate Term Second Department.

Oct. 31, 1997.

Michael J. Griffith, Southampton, for appellant.

Before DiPAOLA, P.J., and COLLINS and FLOYD, JJ.

MEMORANDUM.

Judgments of conviction unanimously reversed on the law and facts, and summonses dismissed.

The parking violation summonses issued to defendant are the functional equivalent of appearance tickets issued in accordance with CPL 150.10 and 150.20 (see, People v. Cooperman and O'Dell, NYLJ, January 17, 1989, App Term [9th & 10th Jud Dists]; Matter of Reynolds v. New York State Department of Motor Vehicles, 52 A.D.2d 1048, 384 N.Y.S.2d 567). It is well settled that an appearance ticket is not an accusatory instrument and its filing does not confer jurisdiction over defendant (see, People v. Cooperman and O'Dell, supra; People v. Gregory, NYLJ December 5, 1991, App. Term [9th & 10th Jud. Dists.] ). There is no indication upon this record that the People ever filed the proper accusatory instruments with the court (see, CPL 150.50). Accordingly, dismissal of the summonses is mandated since the court never acquired jurisdiction (see, People v. Alberi, NYLJ, February 7, 1990 App Term [9th & 10th Jud. Dists.]; People v. Martin, NYLJ, April 16, 1993 App. Term [9th & 10th Jud. Dists.]; People v. Cooperman and O'Dell, supra).

Even if the traffic summonses were to be deemed informations (see, Matter of Shirley v. Schulman, 78 N.Y.2d 915, 573 N.Y.S.2d 456, 577 N.E.2d 1048), we would nonetheless be compelled to dismiss these as facially insufficient. The summonses do not contain nonhearsay allegations establishing each and every element of the offenses charged, (see, CPL 100.40[1]; 100.15; People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71; People v. Willis, NYLJ, January 3, 1997, App term [9th & 10th Jud Dists]; People v. Grillo, NYLJ, July 2, 1996 App Term [9th & 10th Jud Dists] ) and further fail to indicate whether the complainant's information was based on personal knowledge or information and belief (see, CPL 100.15[3]; People v. Blue Point Industrial Park, NYLJ, July 12, 1995, App. Term [9th & 10th Jud. Dists.]; People v. Grillo, supra; People v. Willis, supra; People v. Gregory, supra). Moreover CPL 100.15 requires the accusatory instrument to be verified by the complainant. CPL 100.30 sets forth several methods for proper verification of the accusatory instrument, including a "form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law." The summonses here only provide the statement "Affirmed under the penalty of perjury" followed by the date and signature of the officer. Since there was no verification pursuant to CPL 100.30 the summonses were not valid as accusatory instruments (Matter of Shirley v. Schulman, supra at 917, 573 N.Y.S.2d 456, 577 N.E.2d 1048).

Dismissal of the traffic summonses is further warranted for the additional reason that these failed to comply with the mandatory requirements of Vehicle and Traffic Law & 238(2) (see, Matter of Wheels, Inc. v. Parking Violations Bureau of the Department of Transportation of the City of New York, 80 N.Y.2d 1014, 592 N.Y.S.2d 659, 607 N.E.2d 806; Matter of Ryder Truck Rental v. Parking Violations Bureau, 62...