People v. Patrizio

• Decision Date: 20 December 2018
• Docket Number: 2016-289 S CR
• Citation: 62 Misc.3d 130 (A),112 N.Y.S.3d 427 (Table)
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard PATRIZIO, Appellant.
• Court: New York Supreme Court — Appellate Term

62 Misc.3d 130 (A)

112 N.Y.S.3d 427 (Table)

The PEOPLE of the State of New York, Respondent,

v.Richard PATRIZIO, Appellant.

2016-289 S CR

Supreme Court, Appellate Term, New York.

Decided December 20, 2018

Scott Lockwood, for appellant.

Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.

PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ.

ORDERED that the judgments of conviction are affirmed.

Defendant was charged in a simplified traffic information with using a portable electronic device while operating a motor vehicle ( Vehicle and Traffic Law § 1225-d [1 ] ) and, in a separate simplified traffic information, with operating a motor vehicle with a broken windshield ( Vehicle and Traffic Law § 375 [22 ] ). A supporting deposition pertaining to each charge was provided to defendant contemporaneously with the issuance of each respective uniform traffic ticket. Following a nonjury trial, the District Court found defendant guilty as charged and imposed a fine in the amount of $100, plus a county administrative fee and a state surcharge, for the violation of Vehicle and Traffic Law § 1225-d (1), and a fine in the amount of $25, plus a county administrative fee and a state surcharge, for the violation of Vehicle and Traffic Law § 375 (22).

On appeal, defendant argues that the supporting deposition pertaining to the charge of using a portable electronic device while driving was factually insufficient, since it failed to allege that his motor vehicle had been in motion at the time he had been observed by a state trooper using a portable electronic device, an essential element of the offense. Additionally, defendant contends that, since the Vehicle and Traffic Law authorizes the imposition of fines and surcharges for a violation of the laws contained therein, the County of Suffolk is preempted from enacting an administrative fee based on a violation of those same laws.

Since a defendant charged with a traffic infraction can be prosecuted by a simplified traffic information alone, and, thus, without any facts providing reasonable cause, the absence of a factual allegation in a supporting deposition is not a jurisdictional defect and can be waived (see People v. Beattie , 80 NY2d 840 [1992] ; People v. Key , 45 NY2d 111, 116-117 [1978] ; People v. Kelleher , 39 Misc 3d 149[A], 2013 NY Slip Op 50948[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013] ). Here, defendant failed to move to dismiss the simplified traffic information charging a violation of Vehicle and Traffic Law § 1125-d (1), at any time, based on the alleged insufficiency of the supporting deposition. Thus, the alleged insufficiency of the supporting deposition was waived by defendant's failure to assert this alleged defect before the District Court. Furthermore, the record demonstrates that the simplified traffic information was sufficient on its face, since it substantially conformed to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25, 100.40 [2 ]; Key , 45 NY2d at 115 )....