People v. Hust
| Decision Date | 17 July 1973 |
| Citation | 346 N.Y.S.2d 303,74 Misc.2d 887 |
| Parties | The PEOPLE of the State of New York v. Robert F. HUST. |
| Court | New York County Court |
This is an appeal by the People from an order of the Village Court, Village of Endicott, New York, dismissing a simplified traffic information.
The defendant, Robert F. Hust, was arrested on September 1, 1972 and charged with operating a motor vehicle while intoxicated in violation of § 1192(3) of the Vehicle and Traffic Law. Thereafter, and pursuant to § 100.25(2) of the Criminal Procedure Law, the defendant requested a supporting deposition of the complainant police officer. On March 2, 1973, a duly affirmed deposition was filed by the arresting officer with the court and was served on the defendant's attorney.
The deposition, however, was not sufficient on its face in that it failed to contain 'allegations of fact . . . providing reasonable cause to believe that the defendant committed the offense . . . charged.' CPL § 100.25(2).
At trial on May 22, 1973, the defendant's motion to dismiss the simplified traffic information as defective within the meaning of CPL § 170.35(1)(a) based upon the fact that the deposition was inadequate was initially denied, and the prosecutor's motion to amend the deposition, pursuant to the same section, by filing with the court and serving on the defendant an amended supporting deposition containing the necessary allegations of fact was initially granted.
After a short recess, however, the court had a change of heart and granted the defendant's motion to dismiss the information as defective on the grounds that the original deposition was insufficient on its face within the meaning of CPL § 100.40(2) and § 100.25(2). In so doing the lower court relied heavily on this Court's decision in People v. Zagorsky, 73 Misc.2d 420, 341 N.Y.S.2d 791 (Broome Co.Ct. 1973).
In Zagorsky and its companion cases we painted the law in broad terms. We held there that a simplified information must be dismissed as insufficient on its face within the meaning of CPL § 100.40(2) when a complainant police officer fails to furnish a requested supporting deposition pursuant to CPL § 100.25(2) within a reasonable time before trial. We further held that it would be improper at trial to grant the prosecution an adjournment for the purpose of preparing a deposition. We said that the guarantee of a supporting deposition under the CPL is 'necessary in traffic infraction cases because the simplified information itself is invariably a bare statement of the offense charged and does not adequately apprise the defendant of the specific acts and occurrences which constitute the offense in his particular case.' 73 Misc.2d 424, 341 N.Y.S.2d 796. A supporting deposition is, therefore, often vital to a defendant in order to prevent surprise at the time of trial and to enable him to prepare his defense. Furthermore, a supporting deposition should distinguish the charge against the defendant sufficiently so that no subsequent charge will be made for the same offense. See, cf. People v. Williams, 243 N.Y. 162, 153 N.E. 35 (1926).
The instant case follows in the wake of the Zagorsky decision. We are called upon to determine whether service of a patently inadequate supporting deposition is tantamount to a failure to serve a deposition and whether the consequence set forth in Zagorsky as outlined above should be visited upon the prosecution here.
CPL § 170.30 and § 170.35 supply the procedural machinery for a motion to dismiss a simplified information which is defective. CPL § 170.35(1)(a) states, in pertinent part, that 'a simplified information . . . is defective . . . when . . . (i)t is not sufficient on its face pursuant to the requirements of section 100.40. . . .' CPL 100.40(2) recites that 'when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of . . . section 100.25, a failure of the complainant police officer . . . to comply with such order renders the simplified information insufficient on its face.' CPL § 100.25(2) in turn states that a defendant, upon request, is entitled as a matter of right to a supporting deposition of the complainant police officer 'containing 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...
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