People v. Lennox

• Decision Date: 03 May 1978
• Citation: 405 N.Y.S.2d 581,94 Misc.2d 730
• Parties: PEOPLE of the State of New York v. Constance LENNOX, Defendant.
• Court: New York Justice Court

Page 581

405 N.Y.S.2d 581

94 Misc.2d 730

PEOPLE of the State of New York v. Constance LENNOX, Defendant.

Justice Court, Town of Greenburgh, Westchester County.

May 3, 1978.

Carl A. Vergari, Dist. Atty., Frank D. Castaldi, Asst. Dist. Atty., White Plains, for the People.

Richard J. Danyko, White Plains, for defendant.

OPINION & DECISION

ASCHER KATZ, Town Justice.

Defendant was issued two simplified traffic informations charging her with violating § 1192(2) and § 1192(3) of the Vehicle and Traffic Law, for driving while intoxicated, misdemeanors. Defendant moves to dismiss both informations on the grounds that they are defective under CPL 170.30 for not having been verified in compliance with CPL 100.15 and 100.30.

The simplified traffic informations were verified in the lower left hand side by the arresting officer as follows:

I OBSERVED VEHICLE DESCRIBED HEREIN

Proceeding at _____ m. p. h.

(Signed) MICHAEL ANNICCHIARICO

-----------------------------------

Officer's Signature

AFFIRMED UNDER PENALTY OF PERJURY

SEVERALLY SWORN TO BEFORE ME

THIS _____ day of _____ 19__

Name and Title

The verification form is substantially similar to the forms prescribed under the Regulations of the Commissioner of Motor Vehicles. The officer here signed above the words "Affirmed under penalties of perjury", instead of below these words.

The precise issue before this Court is whether or not this signature above these words renders the information defective and divests the Court of jurisdiction.

A criminal action can be commenced in a local criminal court by the filing of a local criminal court accusatory instrument including "a simplified traffic information". CPL 100.05(2).

A simplified traffic information is defined in CPL 100.10(2) as a:

"written accusation by a police officer, filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It served as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by regular information, and, under circumstances prescribed in Section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges."

CPL 100.25 provides that a simplified traffic information must be substantially in the form prescribed by the Commissioner of Motor Vehicles pursuant to the Vehicle and Traffic Law § 207. CPL 100.25 subdivision 2 also provides that a defendant arraigned upon a simplified traffic information is entitled as a matter of right to have a supporting deposition containing allegations of fact based either upon personal knowledge or upon information and belief and upon such request the Court must order a police officer to file such a supporting deposition and to serve a copy upon the defendant. Defendant has not in this case demanded any supporting deposition.

The Rules and Regulations of the Commissioner of Motor Vehicles § 91.7(b)(3) sets forth in footnote 3 the following:

"The question of whether a single or multiple form of verfication or affirmation is used is left to the option of the police agency. If a single verification if used, the following form is suggested.

Sworn to before me

this ___ day of ___

19__

______________________________

(Name and Title)

If a multiple verification form is to be used, the following format is suggested:

I observed by radar the vehicle

described herein proceeding at

________ m. p. h.

______________________________

(Officer's Signature)

Severally sworn to before me

this _____ day of _____

19__

______________________________

(Name and Title)

If affirmation, rather than verification, is to be used, the following format should be used:

AFFIRMED UNDER PENALTY OF PERJURY

It will be permissible to print both a verification format and the affirmation format on the same simplified traffic information. In such case, the complaining officer should cross out the inapplicable wording before filing the simplified traffic information with the court."

It appears that the arresting officer in the case at Bar struck out the words "by radar" so that his statement, in effect reads "I observed the vehicle described herein" . . . "proceeding at ________ m. p. h." and then his signature appears above the words "affirmed under penalties of perjury."

CPLR 2309(b) provides as follows:

"(b) Form. An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs."

§ 210.00 of the Penal Law provides in part as follows:

" § 210.00 Perjury and related offenses; definition of terms

The following definitions are applicable to this article:

1. 'Oath' includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated"

The test of a statement of facts under oath as to its sufficiency is "whether it has been drawn in such a manner that it might be the basis of a charge of perjury if any material allegation contained therein is false. The affiant is held to strict accountability for the truth and accuracy of the contents of his affidavit." 2 N.Y.Jur., Affidavit, Oath and Affirmation, § 6.

In People v. Grier, 42 A.D.2d 803, 346 N.Y.S.2d 422 a verdict convicting the defendant on 12 counts of perjury in the third degree was reversed on the grounds that the Notary, who was also a practicing attorney, testified that although defendant signed the subject statement and said it was the truth, the Notary did not swear the defendant in, did not tell the defendant that she, the attorney, was a Notary Public or that he, the defendant, was under oath and she did not ask him if he swore to the truth of that which she signed or was about to sign. The Appellate Division stated:

"To make a valid oath, for the falsity of which perjury will lie, there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act, by which the affiant consciously takes upon himself the obligation of an oath, such form being essential to distinguish between an oath and a bare assertion and more being required than a mere intention unaccompanied by an unambiguous act. (Bookman v. City of New York, 200 N.Y. 53, 56, 93 N.E. 190, 191; O'Reilly v. People, 86 N.Y. 154, 2 N.Y.Jur., Affidavit, Oath and Affirmation, § 4, pp. 170-171; see CPLR 2309, subd. (b)). The jurat is simply evidence of the fact that the oath was properly taken before a duly authorized officer, it being no part of the oath nor conclusive evidence of its due administration, and it may be attacked and shown to be false (People ex rel. 5th Ave. and 37th Street Corp. v. Miller (Consol. Proceedings), 261 App.Div. 550, 552, 26 N.Y.S.2d 219, 221, affd. 286 N.Y. 628, 36 N.E.2d 682)." (emphasis supplied)

The Court of Appeals has squarely held that the absence of the verified information is a jurisdictional defect. People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901. At page 153 of 3 N.Y.2d, at page 711 of 164 N.Y.S.2d, at page 904 of 143 N.E.2d, the Court stated:

"If in a case involving a misdemeanor a mere unverified summons is to be the equivalent of an information then any unverified paper could be treated likewise. This would be a dangerous practice, for there are countless misdemeanors for which a defendant may be punished by imprisonment for a year plus a fine of $500 (Penal Law, § 1937), not to speak of additional penalties, such as loss or suspension of a license to drive an automobile, to practice one's profession or to engage in a licensed business.

"The requirement that a prosecution for misdemeanor be based upon a sworn information (unless, of course, made by a District Attorney) is an essential guarantee to a defendant of a fundamental right, namely, that he be not punished for a crime without a formal and sufficient accusation, and this right may not be waived by a plea of guilty (Albrecht v. United States, 273 U.S. 1, 8, 47...