People v. Kachalsky

• Decision Date: 18 November 2021
• Docket Number: 2020-938 W CR
• Parties: The People of the State of New York, Respondent, v. Alan Kachalsky, Appellant.
• Court: New York Supreme Court

2021 NY Slip Op 51159(U)

The People of the State of New York, Respondent, v. Alan Kachalsky, Appellant.

2020-938 W CR

Supreme Court of New York, Second Department

November 18, 2021

Unpublished Opinion

Alan Kachalsky, appellant pro se.

Max DiFabio, for respondent (no brief filed).

PRESENT TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON HELEN VOUTSINAS, JJ

Appeal from judgments of the Justice Court of the Village of Port Chester, Westchester County (Peter F. Sisca, J.), rendered September 21, 2020. The judgments, after a nonjury trial convicted defendant of riding a motorcycle between lanes and disobeying a traffic control device, respectively, and imposed sentences.

ORDERED that the judgments of conviction are affirmed.

In a simplified traffic information, defendant was charged with riding a motorcycle between lanes (Vehicle and Traffic Law § 1252 [c]). It provides that, on December 18, 2019 at 2 p.m., defendant violated Vehicle and Traffic Law § 1252 (c) in the Village of Port Chester, at "S/W BOSTON RD FROM BOA LOT." In a separate simplified traffic information, defendant was charged with disobeying a traffic control device (Vehicle and Traffic Law § 1110 [a]). This latter simplified information indicates that a supporting deposition was provided to defendant at the scene. The supporting deposition set forth that, on December 18 2019 at 2 p.m., in the Village of Port Chester, "S/W BOSTON RD FROM BOA LOT," the complaining officer "DID OBSERVE SAID VEH TRAV S/W WHICH DISOBEYED THE CONSPICUOUSLY POSTED NO LEFT TURN SIGN. SUBJECT THEN CON'T S/W DRIVING BETWEEN LANES OF TRAFFIC."

Defendant moved to dismiss the simplified traffic informations, arguing that the supporting deposition failed to contain factual allegations that provided reasonable cause to believe he committed the traffic infractions charged therein. It does not appear from the record that the Justice Court determined the motion prior to proceeding with the trial. Following a nonjury trial, defendant was convicted of the aforementioned charges, and sentences were imposed. On appeal, defendant contends that the supporting deposition furnished to him failed to provide reasonable cause to believe that defendant committed either offense.

A defendant charged with a traffic infraction can be prosecuted by a jurisdictionally sufficient simplified traffic information alone, and, thus, without any allegations providing reasonable cause (see People v Epakchi, 37 N.Y.3d 39 [2021]). A simplified traffic information is sufficient if it substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25 [1]; 100.40 [2]; People v Anand, 65 Misc.3d 151 [A], 2019 NY Slip Op 51875[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Ferro, 22 Misc.3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). However, where a defendant requests a supporting deposition, the officer must serve defendant with one which must set forth allegations of fact providing reasonable cause to believe that the defendant committed the offense charged (see CPL 100.25 [2]). The officer's failure to provide such a supporting deposition constitutes a violation of CPL 100.25 (2), and renders the simplified traffic information insufficient on its face (see CPL 100.40 [2]) and subject to a motion to dismiss. However, such failure is not a jurisdictional defect and can be waived, as the prosecution can proceed to trial upon the simplified traffic informations alone (see People v Beattie, 80 N.Y.2d 840 [1992]; People v Key, 45 N.Y.2d 111, 116-117 [1978]; People v Vogt, 70 Misc.3d 30, 31-32 [App Term, 2d Dept, 9th &amp 10th Jud Dists 2020]; People v Patrizio...