People v. Hakim

• Decision Date: 12 July 2018
• Docket Number: 2016-405 N CR
• Parties: The PEOPLE of the State of New York, Respondent, v. Dennis HAKIM, Appellant.
• Court: New York Supreme Court — Appellate Term

60 Misc.3d 137 (A)
110 N.Y.S.3d 206 (Table)

The PEOPLE of the State of New York, Respondent,
v.
Dennis HAKIM, Appellant.

2016-405 N CR

Supreme Court, Appellate Term, New York.

Decided on July 12, 2018

Dennis Hakim, appellant pro se.

Nassau County Attorney's Office (Robert F. Van der Waag), for respondent.

PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ

ORDERED that the judgment of conviction is affirmed.

On March 9, 2015, the People charged defendant in a simplified traffic information with using a portable electronic device while operating a motor vehicle (Vehicle and Traffic § 1225-d [1] ). Following a nonjury trial, defendant was found guilty of the offense.

Defendant argues on appeal that the supporting deposition filed in this prosecution did not state the color of the cell phone he was alleged to have employed to commit the offense, thereby failing to apprise him of a fact necessary to a defense. A supporting deposition in this context must

"contain[ ] allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged" ( CPL 100.25 [2 ] ).

Since a simplified traffic information "can proceed to trial without any supporting deposition at all, and hence without any facts providing reasonable cause" ( People v. Key , 45 NY2d 111, 116-117 [1978] ), a complaint that a supporting deposition was legally insufficient to establish reasonable cause is nonjurisdictional (see People v. Beattie , 80 NY2d 840, 842 [1992] ), and must be preserved by a pretrial motion to dismiss, in writing and on reasonable notice to the People ( People v. Key , 45 NY2d at 116 ; see CPL 170.45, 210.45 [1 ]; People v. Sperandeo , 52 Misc 3d 135[A], 2016 NY Slip Op 51032[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v. Appel , 44 Misc 3d 133[A], 2014 NY Slip Op. 51152[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014] ). Defendant never so moved and, thus, his challenge to the supporting deposition's factual sufficiency is not preserved for appellate review. In any event, while...