People v. Gerloff

• Citation: 145 Misc.2d 683,547 N.Y.S.2d 544
• Parties: The PEOPLE of the State of New York, v. Richard L. GERLOFF and Jeffrey J. Kaplan, Defendants.
• Decision Date: 08 November 1989
• Court: New York Justice Court

Page 544

547 N.Y.S.2d 544

145 Misc.2d 683

The PEOPLE of the State of New York, v. Richard L. GERLOFF and Jeffrey J. Kaplan, Defendants.

Justice Court, Village of Scarsdale Westchester County.

Nov. 8, 1989.

John H. Galloway, Scarsdale Village Prosecutor, for the people.

James M. Rose, White Plains, for defendants.

VIRGINIA KNAPLUND, Village Justice.

These two speeding charges have been consolidated for this motion to dismiss because they involve the same incident and the same points of law. A short procedural history is in order.

Defendants, in two cars, were stopped individually by Officer Eugene E. Day on June 4, 1988, and each was issued a Simplified Traffic Information for exceeding the speed limit on Post Road in Scarsdale. Defendants made a timely request for a supporting deposition. When the depositions were not served within the statutory time limit, the Court granted Defendants' written motion to dismiss pursuant to Criminal Procedure Law (hereafter CPL) §§ 100.25 and 100.40(2) on July 27, 1988.

On December 2, 1988, the People filed Long Form Informations based on the same incident. By Decision dated March 20, 1989, the Court dismissed the Long Form Informations on the ground that a Simplified Traffic Information cannot be superceded by a Long Form Information, citing People v. Baron, App.Term, Second Department, 107 Misc.2d 59, 438 N.Y.S.2d 425.

On May 26, 1989, the People filed Simplified Traffic Informations ## 514476 4 (Gerloff) and 514477 5 (Kaplan), again charging Defendants with exceeding the posted speed limit on June 4, 1988. Defendants have moved to dismiss these tickets on two grounds:

1) Officer Day did not sign the Simplified Traffic Informations; and

2) The People are barred from refiling because a dismissal for failing to comply with CPL §§ 100.25 and 100.40(2) is a dismissal with prejudice.

Officer Day printed his name clearly in the section of the ticket marked "Officer's last name (print)." Printing of the officer's name is specifically authorized by regulation 15 NYCRR § 91.11 of the Commissioner of Motor Vehicles, who is charged under CPL § 100.25(1) with prescribing the form of a Simplified Traffic Information:

" § 91.11 Police officer procedure for uniform traffic ticket. (a) When an alleged traffic violator is issued a uniform traffic ticket, the police officer shall sign or print his name on part I of the packet ..." 15 NYCRR (emphasis added). ¹

Since the regulation does not specify where the officer must sign or print his name, Officer Day's printing of his name in the box designated for his name satisfies the regulation.

The principal gravamen of Defendants' motion for dismissal is that a dismissal under CPL §§ 100.25 and 100.40(2) is intended to be with prejudice, barring the People from filing another Simplified Traffic Information dealing with the same traffic infraction. There are lower court decisions holding that such dismissal is without prejudice, ² but this court is aware of no appellate decisions which are dispositive of this issue.

The Appellate Term, Second Department, holds that a Defendant has an absolute right to a supporting deposition if timely requested, and failure to supply a deposition in the time prescribed by statute mandates dismissal. People v. Baron, 107 Misc.2d 59, 438 N.Y.S.2d 425. ³ The Court may not grant an adjournment to cure this defect. People v. DeFeo, 77 Misc.2d 523, 355 N.Y.S.2d 905. The rationale behind this is that CPL § 100.40(2) makes an untimely served Simplified Traffic Information insufficient on its face, and thus the court loses jurisdiction. Without jurisdiction, the court has no power to grant an adjournment.

Practice and procedure in traffic violations are governed by the CPL. Although the speedy trial provisions of CPL § 30.30 do not apply to traffic infractions, Defendants argue that the 30-day time limit for serving the supporting deposition is analogous to the statutory speedy trial limit. Since the Court of Appeals has held that dismissal under the speedy trial statute is a bar to refiling the same charge, ⁴ Defendants assert that this same bar to refiling should attach when a Simplified Traffic Information has been dismissed under CPL §§ 100.25 and 100.40(2).

These statutes, and the courts interpreting them, declare clearly and unambiguously that a Defendant has an absolute right to a timely served supporting deposition. If the prosecutor is permitted to refile the Simplified Traffic Information in order to meet belatedly the 30-day time obligation of the statute, the court would be permitting the prosecutor to do indirectly what the statute prohibits him from doing directly.

This court cannot assume that a statute which is plain on its face is meaningless. If the legislature had wished merely to assert a desirable timetable for service of a supporting deposition, it could simply have provided for adjournment of the trial date to permit late filing of the supporting deposition. This is the procedure used in regard to bills of particular, which, like supporting depositions, amplify the charges or pleadings. The absence of a provision giving the court discretion to adjourn the trial date rather than dismiss the charges outright indicates that the legislature intended the charge to be dismissed with prejudice, not delayed.

The People argue that the spirit of CPL § 100.25 is merely to move things along swiftly. However, if the statute is interpreted to mean, as the People argue, that the People can refile the charge, the opposite has been accomplished. Far from moving a case swiftly, the People's interpretation would remove the prosecutor's incentive to obey the statute, since he would know that failure to obey the timetable set forth in the statute would result only in the minor inconvenience to the police and prosecutor of...