People v. Smith

• Citation: 163 Misc.2d 353,621 N.Y.S.2d 449
• Parties: The PEOPLE of the State of New York v. Michael W. SMITH, Defendant. The PEOPLE of the State of New York v. Richard D. RICHARDSON, Defendant.
• Decision Date: 03 October 1994
• Court: New York Justice Court

Page 449

621 N.Y.S.2d 449

163 Misc.2d 353

The PEOPLE of the State of New York v. Michael W. SMITH, Defendant.

The PEOPLE of the State of New York v. Richard D. RICHARDSON, Defendant.

Justice Court, Town of Perinton,

Monroe County.

Oct. 3, 1994.

Howard R. Relin, Monroe County Dist. Atty. by Catherine Cerulli, Asst. Dist. Atty., Rochester, for the people.

Thomas A. Corletta, Rochester, for defendants.

GARY W. ROOD, Justice.

Both of the above defendants are represented by the same defense counsel. Each defendant is charged with various violations of the Vehicle and Traffic Law ("V & T Law"), including common law driving while intoxicated (V & T Law § 1192[3]. With the consent of the parties, the court has temporarily joined these cases for the purpose of considering and deciding the defendants' respective motions to dismiss because of the similar questions of law involved.

Defendant Smith is charged with common law driving while intoxicated and several traffic infractions by several simplified traffic informations. A single checkoff form supporting deposition by the arresting officer was voluntarily supplied and filed with the simplified traffic informations. Defendant Richardson is charged with both common law driving while intoxicated and driving while intoxicated per se (V & T Law § 1192[2] by two separate simplified traffic informations and a traffic infraction by a third simplified traffic information. Both a checkoff form supporting deposition by the arresting officer and an additional supporting deposition by another police officer were voluntarily supplied and filed with the simplified traffic informations.

Defendant Smith seeks to have the simplified traffic information charging him with common law driving while intoxicated dismissed upon the ground that the accusatory instrument, here a simplified traffic information supplemented by a supporting deposition, is jurisdictionally defective because it does not meet the sufficiency requirements specified by the Court of Appeals in People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 pursuant to CPL § 100.40[1][c], i.e. that the nonhearsay allegations of the information, together with those of any supporting deposition, must be sufficient, if true, to establish a prima facie case. His specific objection is that the supporting deposition does not contain a specific nonhearsay allegation that he was intoxicated. Defendant Richardson seeks to have the simplified traffic information charging him with common law driving while intoxicated dismissed upon the same ground for the same reason.

I.

APPLICATION OF PEOPLE v. ALEJANDRO

TO SIMPLIFIED TRAFFIC INFORMATIONS CHARGING

VIOLATIONS OF V & T LAW § 1192[2] & [3]

The defendants argue that because they are charged with driving while intoxicated, an unclassified misdemeanor (see V & T Law § 1193[1][b], each of them is entitled to the same protection as a defendant charged by information, that being that the nonhearsay allegations of the accusatory instrument and/or any supporting depositions must establish, if true, every element of the offense charged and the defendant's commission thereof (see CPL § 100.40[1][c], and if this "prima facie case" requirement is not met, then the simplified traffic informations should be dismissed as jurisdictionally defective in accordance with the Court of Appeals' rulings in Alejandro (supra ).

The People argue that because these defendants have been charged by simplified traffic informations, the pleading sufficiency requirements of CPL § 100.40[1][c] are not applicable and, therefore, Alejandro (supra ) is not applicable. The People contend that the Court of Appeals' rulings in Alejandro, when read with its rulings in People v. Hohmeyer, 70 N.Y.2d 41, 517 N.Y.S.2d 448, 510 N.E.2d 317, created two classes of criminal defendants charged with misdemeanors: those charged with misdemeanors under the Penal Law and those charged with traffic related misdemeanors.

Central to the issue of whether the rulings of Alejandro should be followed in the cases at bar is not whether a defendant charged with a traffic related misdemeanor is to be treated differently than a defendant charged with misdemeanor under the Penal Law, but, rather, whether a defendant charged with a traffic related misdemeanor by a simplified traffic information should be treated differently and protected less than a defendant charged with the same misdemeanor by an information.

An information is a verified written accusation by a person charging one or more other persons with one or more offenses, none of which is a felony, and can serve as a basis for both commencing and prosecuting the criminal action (CPL §§ 1.20[4] & 100.10[1]. Its factual part may be based either upon personal knowledge or upon information and belief and must allege facts of an evidentiary character supporting or tending to support the charges (CPL § 100.15[3]. In addition, for an information to be sufficient on its face, the allegations of its factual part, together with those of any supporting depositions which accompany it, must provide reasonable cause to believe the defendant committed the offense charged in the accusatory part and the nonhearsay allegations of the factual part and/or any supporting depositions must establish, if true, every element of the offense charged and the defendant's commission thereof (CPL § 100.40[1][b] & [c]. This latter "prima facie case" requirement is jurisdictional and the failure to meet it is a jurisdictionally fatal defect which cannot be waived, even by a defendant's failure to raise the issue until after trial, and requires dismissal (People v. Alejandro, supra 70 N.Y.2d at 135, 517 N.Y.S.2d 927, 511 N.E.2d 71).

As previously cited by this court (see People v. Alessi, 159 Misc.2d 828, 830, 606 N.Y.S.2d 870), the Commission Staff Notes following CPL § 100.40 (reprinted in N.Y.Cons.Law Serv., Book 7A, at 49) point out:

"The lodging of the information is not, as in the case of a felony complaint, followed by a preliminary hearing and a grand jury proceeding, and nowhere at any time prior to pleading or trial are the people required to present actual evidence demonstrating a prima facie case. Under the circumstances, the least that should be required of them is an information containing sworn factual allegations of an evidentiary nature which, if given in the form of trial testimony, would spell out a legally sufficient case."

In his concurring opinion in Alejandro, Judge Bellacosa stated:

"I concur in the result and in the reasoning of the [majority] opinion by Judge Hancock. I am also of the view that this result is a small price to pay for upholding the logic of the statutory framework. It supplies elemental fairness to defendants prosecuted for less serious crimes, but crimes nevertheless, which affect ordinary people and produce lifetime criminal records.

"In coming to this conclusion, I am not unmindful either of the practicalities encountered in prosecuting the relatively greater numbers of these relatively less serious crimes. Rather, that is all the more reason for caution and special protections so that such prosecutions do not become routinized or treated by anyone as insignificant or unimportant." (People v. Alejandro, supra 70 N.Y.2d at 140, 517 N.Y.S.2d 927, 511 N.E.2d 71.)

Any alleged violation of the V & T Law, whether a misdemeanor or a mere traffic infraction, may be charged by an information instead of a simplified traffic information (CPL § 100.10[1] & [2][a]. If either defendant had been charged by information, the nonhearsay factual allegations of the information and/or any supporting depositions would have had to establish a prima facie case for the driving while intoxicated charge or charges and for each of the traffic infractions charged in order to be jurisdictionally sufficient with regard to all offenses charged thereby. If the nonhearsay factual allegations failed to establish a prima facie case with regard to any of the charges, even one of the traffic infractions, that charge would have to be dismissed pursuant to Alejandro (supra ).

A misdemeanor complaint, like an information, is a verified written accusation by a person charging one or more other persons with one or more offenses, none of which is a felony. Unlike an information, at least one of the offenses charged by the misdemeanor complaint must be a misdemeanor. While the misdemeanor complaint can serve as a basis for commencing the criminal action, it cannot serve as a basis for prosecuting the criminal action unless the defendant waives prosecution by information and consents to be prosecuted upon the misdemeanor complaint (CPL §§ 1.20[7], 100.10[4] & 170.65[3]. Although nonhearsay allegations establishing a prima facie case are not necessary, for a misdemeanor complaint to be sufficient, its factual part, as with an information, must contain allegations of facts of an evidentiary character, based upon personal knowledge or upon information and belief, which support or tend to support the charges (CPL § 100.15[3] and the factual allegations of the factual part and/or any supporting depositions filed with it must provide reasonable cause to believe the defendant committed the offense charged (CPL § 100.40[4][b].

A defendant charged by a misdemeanor complaint is not required to enter a plea thereto and if he or she does not waive prosecution by information, it must be replaced by an information (CPL § 170.65[1]. This right to be prosecuted by information is substantial and takes into account a fundamental difference between the misdemeanor complaint and the information, i.e. the misdemeanor complaint may rest upon hearsay allegations while the information may not (People v. Weinberg, 34 N.Y.2d 429, 431, 358 N.Y.S.2d 357, 315 N.E.2d 434). Therefore, a defendant charged by a misdemeanor complaint, in the absence of a waiver, is afforded the same protection as a defendant charged by an...