People v. Spiegelman

CourtNew York Villiage Court
Citation142 Misc.2d 617,537 N.Y.S.2d 964
Decision Date24 January 1989
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Gene SPIEGELMAN, Defendant.

Page 964

537 N.Y.S.2d 964
142 Misc.2d 617
The PEOPLE of the State of New York, Plaintiff,
v.
Gene SPIEGELMAN, Defendant.
Village Court of Kensington,
Nassau County.
Jan. 24, 1989.

John Gionis, Village Pros. Atty., Great Neck, for the people.

Librett, Friedland & Lieberman, Garden City, for defendant.

STEPHEN R. TAUB, Village Justice.

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

Page 965

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:

"1. An information, a simplified information, a prosecutor's information or a misdemeanor complaint, or a count thereof, is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when:

(a) It is not sufficient on its face pursuant to the requirements of section 100.40; provided that such an instrument or count may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend; ..."

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...

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4 practice notes
  • People v. Rossi
    • United States
    • New York Justice Court
    • May 29, 1992
    ...for the charge against the defendant. See, e.g., People v. Abajian, 142 Misc.2d 250, 256, 537 N.Y.S.2d 449. Cf. People v. Spiegelman, 142 Misc.2d 617, 621, 537 N.Y.S.2d 964. Accordingly, the Legislature has given the defendant an absolute right to obtain a deposition from the arresting offi......
  • People v. Aucello
    • United States
    • United States State Supreme Court (New York)
    • March 27, 1990
    ...deposition in such case was concededly timely Page 438 (ibid., at 1090, 509 N.Y.S.2d 463) and sufficient. In People v. Spiegelman, 142 Misc.2d 617, 622, 537 N.Y.S.2d 964, the Village Court of Kensington (Nassau County) held that a failure to provide a supporting deposition was an amendable ......
  • People v. Horner, No. 923621.
    • United States
    • New York City Court
    • July 2, 2010
    ...of the factual part of the information and/or any supporting deposition that accompany it. C.P.L. § 100.45; People v. Spiegelman, 142 Misc.2d 617 (Justice Court 1989).D. Selective prosecution: While the defendant asserts that he has been aggrieved by the unconstitutional enforcement of the ......
  • People v. Erdman
    • United States
    • New York Justice Court
    • September 19, 1989
    ...would be a parking violation. However, as the People have not moved to amend, that issue is not before the Court. People v. Spiegelman, 142 Misc.2d 617, 537 N.Y.S.2d 964 (Nassau Co.1989); People v. Baron, 107 Misc.2d 59, 438 N.Y.S.2d 425 (Appellate Term Accordingly, this Court finds the def......

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