People v. Kreismann
| Decision Date | 24 October 1994 |
| Citation | 619 N.Y.S.2d 253,162 Misc.2d 726 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Andrew KREISMANN, Defendant. |
| Court | New York Justice Court |
John Gionis, Kensington Village Prosecutor, East Norwich, for the people.
Ronald Kreismann, Great Neck, for the defendant.
Defendant has moved for dismissal of the simplified traffic information pursuant to CPLR 3211 on the grounds that "it fails to state a claim against Defendant upon which relief can be granted." It will be treated as a motion to dismiss a simplified information pursuant to CPL 170.30 and 170.35. The Village Prosecutor has cross-moved pursuant to CPL 170.35(1)(a) for permission of the court to amend the simplified traffic information.
It is undisputed that the simplified traffic information contains inaccurate information in that the license plate number therein set forth as C331FG should be C331FJ. The issue before the court is whether the defect renders the accusatory instrument fatally and unamendably defective or whether the defect or irregularity may be cured by amendment, and the prosecutor has so moved as required by CPL 170.35(1)(a).
Unfortunately there is no case decision providing a "bright line" delineation between a fatal defect and a mere irregularity. The best one finds are case-by-case determinations, often involving unique facts.
The authorities relied upon by the defendant, particularly Matter of Reape v. Adduci, 151 A.D.2d 290, 542 N.Y.S.2d 562 (1 Dept.1989), and People v. Goldsmith, 110 Misc.2d 528, 442 N.Y.S.2d 760 (Nassau Cty.1981) both deal with post-trial applications. In Reape, supra the officer testified that the Defendant was operating a red Chevrolet sedan which allegedly failed to stop for a red light. The uncontradicted testimony of the Defendant was that he was operating a friend's blue and white Cadillac. In Goldsmith, supra the Defendant was charged with speeding while operating a 1976 beige Mercury Monarch, license plate 988 YDJ when, in fact, he was operating a 1969 blue Dodge, license plate ERG41, both vehicles being owned by the Defendant and/or his wife. In each of the foregoing cases, the prosecutions were terminated, not because of any defect in the accusatory instrument but, rather, because the trier of fact found a reasonable doubt in the testimony, resulting in an acquittal. The Court in Reape, supra did not address the sufficiency of the accusatory instrument at all. However, in Goldsmith, supra the Court specifically stated 442 N.Y.S.2d at Page 761:
[Emphasis added]
Accordingly, this authority cited by the Defendant indicates that had the prosecutor moved to amend the summons prior to trial, a...
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People v. Sperandeo
...[2004] ; People v. Martin, 23 Misc.3d 67, 69 [App Term, 2d Dept, 9th & 10th Jud Dists 2009] ) or typographical (see People v. Kreismann, 162 Misc.2d 726, 727 [Village of Kensington Justice Court 1994] ), the court properly permitted the amendment of defendant's address because it “did not c......
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People v. Wienclaw
...error in one digit of a license plate number, but the facts in the information were sufficient to sustain the charge. (People v Kreismann, 162 Misc 2d 726 [Kensington Just Ct, Nassau County 1994].) Since the Judges in the above cases denied dismissal and granted permission to amend the info......
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People v. Sperandeo
...408 [2004]; People v Martin, 23 Misc 3d 67, 69 [App Term, 2d Dept, 9th & 10th Jud Dists 2009]) or typographical (see People v Kreismann, 162 Misc 2d 726, 727 [Village of Kensington Justice Court 1994]), the court properly permitted the amendment of defendant's address because it "did not ch......
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People v. Lamountain
...has not been prejudiced. See People v. Pena, 146 Misc.2nd 767, 552 N.Y.2d 543 (Crim.Ct.N.Y.Co., 1990), and People v. Kreismann, 162 Misc.2d 726, 619 N.Y.S.2d 253 (Kensington Justice Ct., Nassau Co, 1994). In the case at bar, however, the correction, if made, changes the offense charged agai......