People v. Guerrerio

• Decision Date: 05 August 1999
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>MICHAEL A. GUERRERIO, Defendant.
• Court: New York Justice Court

181 Misc.2d 517

694 N.Y.S.2d 619

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.MICHAEL A. GUERRERIO, Defendant.

August 5, 1999.

Harold, Salant, Strassfield & Spielberg (Jerold Rotbard of counsel), for defendant.

Brian S. Stolar, Village Prosecutor of Village of North Hills, for plaintiff.

OPINION OF THE COURT

SOLOMON H. FRIEND, J.

This case presents an issue of first impression, namely, whether in the absence of a valid arraignment a defendant's mail request for a supporting deposition sent prior to the return date that the defendant is directed to appear in court is timely and valid and triggers a response by the People. For the reasons hereafter discussed, this court holds that defendant's request for a supporting deposition was timely, and, therefore, the People's failure to respond within 30 days from the return date mandates dismissal of the simplified traffic informations.

On Friday, January 29, 1999, at 11:45 P.M., the defendant was issued six simplified traffic informations, i.e., speeding, tailgating, no seat belt, unsafe lane change, failure to signal lane change and failure to produce valid insurance card. The tickets were returnable in this court on March 8, 1999. Although the defendant contends that his plea of not guilty was mailed by certified mail within 48 hours from the issuance of the tickets, the court concludes, on the basis of the return receipt which is included in the court record, that the not guilty plea was not mailed within 48 hours, but rather was sent via certified mail on February 4, 1999 and received by the clerk of the court on February 8, 1999. Technically, therefore, the not guilty plea by mail does not constitute an arraignment. (Vehicle and Traffic Law § 1806.) However, at the same time that defendant sent his defective not guilty plea, he checked the box on the reverse side of the appearance ticket to signify his request for a supporting deposition.

The prosecutor contends that in the absence of a valid arraignment, the court lacks jurisdiction over the defendant, is without authority to set the course of further proceedings, and, consequently, the defendant's accompanying request for a supporting deposition is a nullity, citing People v Perry (87 NY2d 353 [1996]). The court disagrees.

Justice Courts are often confronted with motions to dismiss stemming from a failure to supply a supporting deposition. The Criminal Procedure Law provides that "[a] defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant" (CPL 100.25 [2]; emphasis added). The supporting deposition must contain sufficient allegations of fact to provide reasonable cause to believe that the defendant committed the offense charged (CPL 100.25 [2]). In order to constitute reasonable cause, the supporting deposition must contain evidence or information which is sufficiently reliable so as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed by the defendant. (CPL 70.10 [2].) The evidence may include hearsay evidence (CPL 70.10 [2]). Failure to timely supply the supporting deposition mandated by CPL 100.25 (2), after a timely request, renders the simplified information insufficient on its face and mandates dismissal (see, e.g., People v Baron, 107 Misc 2d 59 [App Term 1980]; People v De Feo, 77 Misc 2d 523 [App Term, 2d Dept 1974]).

Effective October 27, 1996, the Legislature amended CPL 100.25 to now require that whenever an appearance ticket, as defined in CPL 150.10 (1), is issued, the ticket must contain certain and specific language regarding the defendant's right to receive a supporting deposition. The new language which is required, pursuant to CPL 100.25 (4), is as follows: "NOTICE: YOU ARE ENTITLED TO RECEIVE A SUPPORTING DEPOSITION FURTHER EXPLAINING THE CHARGES PROVIDED YOU REQUEST SUCH SUPPORTING DEPOSITION WITHIN THIRTY DAYS FROM THE DATE YOU ARE DIRECTED TO APPEAR IN COURT AS SET FORTH ON THIS APPEARANCE TICKET. DO YOU REQUEST A SUPPORTING DEPOSITION? []YES []NO." In the instant case, the six tickets contain the required new language verbatim.

The issue thus presented by this case is whether, in the absence of a valid arraignment, the request for a supporting deposition was timely. CPL 100.25 (2) now expressly provides that if a defendant's request (for a supporting deposition) is mailed to the court, the request must be mailed within 30 days after the defendant is directed to appear in court as such date appears upon the simplified traffic information and appearance ticket. Indeed, the new language of the amended statute, repeated verbatim on the tickets issued to defendant, specifically states that the defendant is entitled to receive a supporting deposition on request, provided that the request is made within 30 days from the date the defendant is required to appear in court. The notice makes no reference to the necessity that the defendant must first be validly arraigned.

Under CPL 100.25 (3), where a defendant is issued an appearance ticket in conjunction with the simplified information which does not conform with the requirements of CPL 150.10, a request for a supporting...