People v. Sperandeo

• Decision Date: 23 June 2016
• Docket Number: 2014-3002 S CR
• Parties: The People of the State of New York, Respondent, v. Janette Sperandeo, Appellant.
• Court: New York Supreme Court — Appellate Term

2016 NY Slip Op 51032(U)

The People of the State of New York, Respondent,
v.
Janette Sperandeo, Appellant.

2014-3002 S CR

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Decided on June 23, 2016

PRESENT: : GARGUILO, J.P., IANNACCI and BRANDS, JJ.

Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Allen S. Mathers, J.H.O.), rendered November 6, 2014. The judgment convicted defendant, after a nonjury trial, of failing to stop at a stop sign.

ORDERED that the judgment of conviction is affirmed.

The People charged defendant, in a simplified traffic information, with failing to stop at a stop sign (Vehicle and Traffic Law § 1172 [a]). The accusatory instrument misidentified the street number of defendant's residence. Defendant thereafter requested a supporting deposition, which was never produced. After the commencement of a nonjury trial, the District Court denied defendant's oral motion to dismiss the accusatory instrument on those grounds. At the conclusion of the trial, following the testimonies of the complainant police officer and defendant, the court convicted defendant of the offense, according to the transcript, "by a fair preponderance of the evidence." Upon settling the record for this appeal, the court noted that the transcript contained a misstatement in that the stenographer had erroneously substituted that standard for "beyond a reasonable doubt." On appeal, defendant, who asserts her innocence, argues that the address error and the failure to produce the supporting deposition rendered the accusatory facially insufficient and, thus, the court erred in denying her motion to dismiss, and that the court convicted her on an erroneous legal standard for evidentiary sufficiency.

The failure to produce a timely requested supporting deposition renders a simplified traffic information insufficient on its face (CPL 100.40 [2]) and subject to dismissal upon motion (see CPL 170.30 [1] [a]; 170.35 [1] [a]; e.g. People v Nuccio, 78 NY2d 102, 104 [1991]; People v Hollinger, 15 Misc 3d 130[A], 2007 NY Slip Op 50622[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). However, defendant's remedy was a timely pretrial written motion to dismiss, with notice to the People (CPL 170.30 [1] [a]; 170.35 [1] [a]; 170.45, 210.45 [1]; 255.20 [1]; People v Alese, 45 Misc 3d 135[A], 2014 NY Slip Op 51733[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). As a simplified traffic information, if otherwise "comply[ing] with the requirements of the Commissioner of Motor Vehicles" (People v Key, 45 NY2d 111, 115 [1978]; see CPL 100.25 [1]), is a triable accusatory instrument (People v Key, 45 NY2d at 116-117), the failure to timely move to dismiss on this ground waives the claim (see e.g. People v Kelleher, 39 Misc 3d 149[A], 2013 NY Slip...