People v. Malone

• Decision Date: 06 July 1995
• Citation: 166 Misc.2d 54,631 N.Y.S.2d 223
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Stephen C. MALONE, Defendant.
• Court: New York District Court

Page 223

631 N.Y.S.2d 223

166 Misc.2d 54

The PEOPLE of the State of New York, Plaintiff, v. Stephen C. MALONE, Defendant.

District Court, Suffolk County First District.

July 6, 1995.

James M. Catterson, Jr., District Attorney of Suffolk County, Central Islip, for plaintiff.

Kenneth J. Weinstein, Garden City, for defendant.

SALVATORE A. ALAMIA, Judge.

Defendant, charged in simplified environmental conservation informations with violations of the Environmental Conservation Law and the regulations promulgated thereunder (ECL 27-1505(3, 5); 6 NYCRR 364.2), seeks either dismissal of the simplified informations due to the failure of the People to furnish him with a bill of particulars despite his demand, or alternative relief.

The file markings reflect defendant pleaded not guilty on January 12, 1994. He made his request for a bill of particulars more than one year later, on February 15, 1995. A defendant is not entitled to a bill of particulars when the underlying accusatory instrument is a simplified information (see CPL 100.45(4)). The defendant herein is not entitled to a bill of particulars, since the prosecution against him is based only on simplified environmental informations. Consequently, the failure of the People to furnish him with a bill of particulars cannot be the basis for either dismissal of the prosecution or a directive to the People to furnish him with the demanded particulars, the latter request constituting one of the items of alternative relief defendant seeks.

The second, and final, item of alternative relief sought by defendant is a supporting deposition (see CPL 100.25(2)). Even if the defense request for a bill of particulars were deemed a request for a supporting deposition, defendant did not make his request for a deposition in timely fashion. A supporting deposition must be requested within thirty days either of a not guilty plea when the arraignment is in person, or of a written notice of entitlement to a deposition when a defendant pleads not guilty by mail (CPL 100.25(2)). As noted earlier, defendant pleaded not guilty on January 12, 1994, according to the file markings, but he did not serve his request until February 15, 1995, more than one year later and far in excess of the thirty day period specified in CPL 100.25(2) for the making of a request for a supporting deposition. The issue becomes, then, whether a defendant has the right to, or may obtain, a supporting deposition when the request is late.

A legislative intent to ensure against prolonged pretrial proceedings emerges from the juxtaposition of the bill of particulars, discovery, and supporting depositions sections of the Criminal Procedure Law, as they apply to those situations in which the underlying accusatory instrument is a simplified information and the only charges are violations or infractions. Neither the bill of particulars request, as noted earlier, nor the discovery demand is available (see CPL 100.45(4), 240.20(1); see also People v. McGettrick, 139 Misc.2d 403, 528 N.Y.S.2d 758). The supporting deposition is, in effect, the only discovery device open to a defendant; and, given the relatively minor nature of the offenses involved, the legislature requires that the accused avail himself of it promptly (see CPL 100.25(2)). Indeed, the Court of Appeals has recognized that a defendant is entitled to a supporting deposition only when the request is timely. Failure to...