People v. Spiegelman
| Decision Date | 24 January 1989 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Gene SPIEGELMAN, Defendant. |
| Court | New York Villiage Court |
John Gionis, Village Pros. Atty., Great Neck, for the people.
Librett, Friedland & Lieberman, Garden City, for defendant.
Defendant moves, pursuant to Criminal Procedure Law Section 170.35(1)(a), for dismissal of a Simplified Traffic Information on the grounds that said Information is insufficient as a matter of law for failure to provide a supporting deposition pursuant to timely demand. The Affirmation in support of the motion refers the Court to no relevant cases, relying entirely on the language of CPL Section 100.25(2).
The Village Prosecutor has cross-moved to amend the Simplified Traffic Information (presumably by serving the supporting deposition) or alternatively for leave to re-serve the defendant with a new Simplified Traffic Information (presumably with a supporting deposition). The application of the People, like that of the defendant, is based upon Section 170.35(1)(a) of the Criminal Procedure Law.
The statute relied on by both the Prosecutor and the defendant reads as follows:
Both the defendant and the Prosecutor interpret the same language as authority for the relief he seeks.
The facts, for purposes of this motion and cross-motion, are not in dispute. On September 14, 1988 at approximately 5:30 P.M., the defendant received Uniform Traffic Ticket No. TK700008-1, alleging a violation of Vehicle and Traffic Law Section 1180(d), for speeding at the rate of 41 miles per hour in a 25 miles per hour zone within the Village of Kensington. On September 27, 1988, the defendant's attorney sent a letter to this Court purportedly serving four (4) purposes: (1) as a notice of appearance; (2) to enter a plea of not guilty; (3) requesting a Court date; and (4) demanding a supporting deposition. No supporting deposition has been served.
The defendant claims that a failure to comply with CPL Section 100.25(2) renders a simplified traffic information defective as a matter of law. Although not cited, the Court takes judicial notice of CPL Section 100.40(2) which indeed states that a failure to provide a supporting deposition "renders the simplified information insufficient on its face." For the foregoing reasons, the defendant wants the summons dismissed.
The Village Prosecutor initially seeks denial of the motion upon the authority of People v. Schlosser, 129 Misc.2d 690, 493 N.Y.S.2d 750 (Dist.Ct., Nass.Co., 1985). In that decision, Honorable Jules E. Orenstein, now a Judge of the Nassau County Court, denied a similar motion on the grounds that the defendant failed to serve a copy of the Demand for a supporting deposition upon the District Attorney of Nassau County. Judge Orenstein felt that a demand for a supporting deposition, like any other document served in the course of litigation, must be served upon one's adversary prior to filing with the Court.
The Court accepts the Prosecutor's representation that no such demand was served. However, this Court will not deny the motion on these grounds. Judge Orenstein recognized that in the Central Traffic Part of the Nassau County District Court, tens of thousands of traffic tickets and prosecutions are processed each year and prosecuted by the Nassau County District Attorney, presenting many administrative and ministerial problems. He also recognized that "In many small Justice, Magistrate, or other local minor traffic courts, the local law enforcement officer in most instances prosecutes traffic violations, and the local District Attorney does not prosecute same"(supra, 129 Misc.2d at 691, 493 N.Y.S.2d 750). In the Village of Kensington, the office of Village Prosecuting Attorney is a part-time position. To send a copy of the demand to the Village Prosecutor would require nothing more than sending a second copy of the same letter to the same address as the original letter filed with the Clerk of the Court. While motions, affidavits and similar documents must be separately served on the Village Prosecutor, this Court will not require a procedural frivolity of sending two copies of the same letter to the same address. Therefore, in full agreement with the logic of Judge Orenstein, this Court will not deny defendant's motion for failure to serve the Village Prosecutor.
This Court has found only two appellate cases on point. In People v. De Feo, 77 Misc.2d 523, 355 N.Y.S.2d 905 (App.Term 2nd Dep't., 1974), a motion to dismiss a summons for speeding was based upon the Prosecutor's failure to comply with defendant's demand for a supporting deposition. The District Court of Nassau County had denied the motion, granting the Prosecutor's request for an adjournment of the trial solely for the purpose of providing same. The Appellate Term reversed and dismissed, holding that an adjournment for the purpose of serving a supporting deposition was improper. Clearly, failure to provide a supporting deposition in a timely manner renders the simplified traffic information defective as a matter of law and subject to dismissal. Significantly, however, the Court did not decide whether the People were thereby precluded from re-prosecuting the defendant.
In 1980, the Appellate Term for the Ninth and Tenth Judicial Districts, in People v. Baron, 107 Misc.2d 59, 438 N.Y.S.2d 425, unanimously reversed a conviction and dismissed the simplified traffic information. A supporting deposition, supplied by the officer, was inconsistent with the ticket with respect to the date and time of the alleged offense. The Court stated:
"Of course, the court on a motion to dismiss a simplified traffic information on the ground that it is not sufficient on its face pursuant to CPL 100.40, must amend same rather than dismiss said simplified information, if the defect or irregularity is of the kind that may be cured by amendment and the People move to so amend (see CPL 170.30[1][a]; 170.35[1][a] )."
The District Attorney, however, rather than amend the supporting deposition, sought leave to supersede the simplified traffic information with a long form information and supporting deposition, which the Court below permitted. The Appellate Term held that a long form information could not be substituted for a simplified traffic information and dismissed for insufficiency pursuant to CPL 100.25(2), 100.40(2) and 100.10(2). This Court interprets the foregoing decision of the Appellate Term not only to stand for the proposition that a simplified traffic information and long form information are separate and unrelated entities, but also for the proposition that a simplified traffic information could, indeed, be amended by the act of amending an otherwise insufficient supporting deposition.
The City Court of Long Beach, in People v. Origlia, 138 Misc.2d 286, 524 N.Y.S.2d 163 (1988), held that a failure to provide a supporting deposition rendered the simplified traffic information insufficient on its face. The Prosecutor sought leave to file a...
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