People v. Horner
| Decision Date | 02 July 2010 |
| Docket Number | No. 923621.,923621. |
| Citation | 958 N.Y.S.2d 647,30 Misc.3d 1207,2010 N.Y. Slip Op. 52323 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Terry HORNER, Defendant. |
| Court | New York City Court |
OPINION TEXT STARTS HERE
Terry D. Horner, Esq., Poughkeepsie, Defendant, pro se.
Paul Ackermann, Asst. Corp. Counsel, Corporation Counsel, Poughkeepsie.
Defendant was charged with various parking offenses in violation of the City of Poughkeepsie Code. On December 29, 2009, defendant filed a motion seeking to dismiss the above captioned tickets pursuant to C.P.L. § 170.30(1)(a). The motion is supported by the affirmation of Terry D. Horner, dated December 23, 2009, a memorandum of law dated December 23, 2009 together with several exhibits. On January 13, 2010, the People filed opposition to the defendant's motion, supported by the affirmation of Paul Ackermann, Assistant Corporation Counsel, dated January 11, 2010. On February 2, 2010, the defendant filed the reply affirmation of Terry Horner, Esq., dated February 1, 2010. The Court having now duly deliberated upon said motion, the opposition, and defendant's reply finds and determines the motion as follows:
FACTS & ARGUMENTS:
On August 6, 2009, defendant was charged with an overtime parking offense in violation of City Code § 13–62, representing ticket number 923621. On September 22, 2009 defendant was charged with another overtime parking offense in violation of City Code § 13–62, representing ticket number A010000596. On December 2, 2009, defendant was charged on with alternate side parking offense in violation of City Code § 13–117, representing ticket number A020001696. Defendant pled not guilty to all three offenses and the police served a supporting deposition in connection with each offense. A trial date was scheduled for January 4, 2010 for all three matters. Prior to the trial, the defendant filed the instant motion.
Defendant's motion seeks to have each of the matters dismissed. In particular, the defendant argues that this Court has not acquired subject matter jurisdiction over any of the offenses because none of the parking summonses were succeeded by a legally sufficient complaint or information. Defendant cites C.P.L. § 150.50, People v. Horner, 176 Misc.2d 93 and People v. Cooperman, N.Y.L.J., Jan. 17, 1989, p. 26, col. 4 (App. Term 9th & 10th Districts) in support of his contention. Defendant argues that service of a supporting deposition on these matters does not convert an appearance ticket into an accusatory instrument the way that it converts a valid complaint into an information. Defendant further argues that a parking ticket must be succeeded by a long form accusatory instruments because parking offenses may never be prosecuted by simplified information, citing V.T.L. § 207(1); 15 N.Y .C.R.R. § 91.3(a) and § 91.4(b). Finally, defendant argues that even if this Court deems the form filed to be a long form information, the tickets are still fatally defective because it illegally solicits a plea by mail, and a plea to an accusatory instrument must be in person or by counsel ( citing C.P.L. § 340.20(2)(a) and V .T.L. § 1805 ).
Defendant also argues that the information on ticket numbers 923621 and A020001696 are deficient because the tickets fail to allege the situs of the offense, i.e., “opposite 332 Main St” whereas the Code requires that the offense occur between Market and Clinton (Code § 13–191.4) and “in front of Hamilton” whereas the Code requires that the offense occur between Montgomery and Livingston (Code § 13–195). With respect to ticket number A010000596, the defendant argues that the summons identifies the date of the offense as 9/22/09 whereas the supporting deposition states August 6, 2009 at 9:57 A.M., making the summons defective and subject to dismissal.
In opposition to the defendant's motion, the People argue that documents filed with the court are accusatory instruments, not appearance tickets as the defendant suggests. The People further argue that while a parking violation does not necessitate the filing of a supporting deposition, the People did so as a prophylactic against any claims by the defendant alleging there to be cryptic language in the accusatory instrument. The People cite People v. Wienclaw, 183, Misc.2d 727 (2000) and People v. Gabbay, 175 Misc.2d 421 (2d Dept.1997) in support of their contention that the documents filed with this Court charging the defendant are valid accusatory instruments and that upon their filing with this Court jurisdiction was conferred over the defendant. The People highlight C.P.L. §§ 100.15, 100.30 and 100.40 in arguing that each accusatory instrument contains non-hearsay factual allegations to establish a prima facie case and also highlight that each accusatory instrument is signed and verified by the officer who had direct knowledge of the offenses committed. The People also cite, Vehicle and Traffic Law § 1805 and § 1806 which permit pleas to be entered by mail. Finally, the People argue that any defects in setting forth the location of the offense can be corrected by amendment.
Defendant's reply seeks to counter the applicability and conformity of the ticket with V.T.L. § 1805 and 1806 as well as the adequacy describing the situs of the offenses. Defendant's reply papers also inject newly raised arguments never broached in his original motion.
LEGAL ANALYSIS AND CONCLUSION:
A. Subject matter jurisdiction over the defendant:
The accusatory instruments filed by the People convey subject matter jurisdiction over this defendant for each of the tickets.
It is well settled that an appearance ticket is not an accusatory instrument and its filing does not confer jurisdiction over the defendant. People v. Horner, 176 Misc.2d 93(App. Term 1998)citing People v. Cooperman, N.Y.L.J., Jan. 17, 1989, at 26, col 4 (App. Term, 9th & 10th Jud. Dists.); People v. Gregory, N.Y.L.J., Dec. 5, 1991, at 30, col 2 (App. Term, 9th & 10th Jud. Dists). Rather, parking summonses must be succeeded by a legally sufficient accusatory instrument. People v. Cooperman, N.Y.L.J., Jan. 17, 1989, at 26, col 4 (App. Term, 9th & 10th Jud. Dists.). Indeed, failure to file an accusatory instrument for a parking violation will result in dismissal of the offense. People v. Wienclaw, 183 Misc.2d 727 (Village Ct.2000)citing People v. Gilberg, 166 Misc.2d 772 (App Term, 2d Dept.1995). This is because “an appearance ticket is a mere invitation to go to court and does not provide the court with jurisdiction.” Weinclaw, supra, citing People v. Ashkinadze, 167 Misc.2d 80 (Crim.Ct.1995). However, here facially sufficient accusatory instruments were filed in each instance.
An appearance ticket is defined as “a written notice issued by a public servant, more fully defined in section 150.10, requiring a person to appear before a local criminal court in connection with an accusatory instrument to be filed against him therein.” C.P.L. § 1.20.
An accusatory instrument is defined as “an indictment, an indictment ordered reduced pursuant to subdivision one-a of section 210.20 of this chapter, an information, a simplified information, a prosecutor's information, a superior court information, a misdemeanor complaint or a felony complaint. Every accusatory instrument, regardless of the person designated therein as accuser, constitutes an accusation on behalf of the state as plaintiff and must be entitled, “the people of the state of New York” “against a designated person, known as the defendant.” C.P.L. § 1.20(1).
An information means, “a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, none of which is a felony, and which may serve both to commence a criminal action and as a basis for prosecution thereof.” C.P.L. § 1.20(4).
In order to assess the validity of an information and whether it is a legally sufficient accusatory instrument the Court is governed by Article 100 and 170 of the C.P.L in its determination. Wienclaw, supra at 730; People v. Weinberg, 146 Misc.2d 441 (App. Term 2d Dept.1990). More specifically, an infraction must conform with the requirements of C.P.L. 100.15, to wit:
the complainant must subscribe and verify his signature, based upon personal knowledge or upon information and belief. The accusatory part must designate the offenses and the factual part must allege facts of an evidentiary nature [C.P.L. § 100.15(1), (2), (3); People v. Dumas, 68 N.Y.2d 729 (1986) ]. As a secondary and equally important requirement, the information must contain allegations of fact that provide reasonable cause to believe the defendant committed the offense charged and that the charges are supported by nonhearsay allegations that establish each element. [C.P.L. § 100.40(1)(b), (c); People v. Hall, 48 N.Y.2d 927(1979); People v. Cea, 141 Misc.2d 234 (Crim.Ct.1988) ]. The burden of proof need only be a prima facie case and need not be beyond a reasonable doubt' [People v. Henderson, 92 N.Y2d 677 (1999) ]. Failure to comply with any of the above requirements is considered a jurisdictional defect, and therefore the information should be dismissed as defective on its face. People v. Alejandro, 70 N.Y.2d 133 (1987).
In order to be facially sufficient an accusatory instrument need only establish a prima facie case and it need not establish guilt beyond a reasonable doubt. People v. Henderson, 92 N.Y.2d 677 (1999); People v. Moncayo, N.Y.L.J., April 10, 1997, at 29, Col 4 [App Term, 2d & 11th Jud. Distr.]. The prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson,supraat 680. Review of the accusatory instruments here reveals that each meets the requirements of Article 100 and 170 of the C.P.L .. Sufficient factual allegations are set forth in the accusatory...
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