People v. Titus
| Decision Date | 07 July 1998 |
| Citation | 178 Misc.2d 687,682 N.Y.S.2d 521 |
| Parties | , 1998 N.Y. Slip Op. 98,688 The PEOPLE of the State of New York, Appellant, v. Jimmy TITUS, Respondent. |
| Court | New York Supreme Court — Appellate Term |
James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Ronald E. Lipetz of counsel), for appellant.
Anthony E. Core, P. C., Westbury (Amy M. Haber of counsel), for respondent.
Present: DiPAOLA, P.J., FLOYD and PALELLA, JJ.
Order unanimously affirmed.
In two simplified traffic informations, defendant was charged with operating a motor vehicle in violation of safety rules and regulations (Transportation Law § 140[2][d][ii] ) and in a third, with operating a motor vehicle with an expired license (Vehicle and Traffic Law § 509[1] ) on June 6, 1997 in Islip. On July 30, he was arraigned and on August 12, 1997, a written request for supporting depositions was made. In motion papers filed on October 16, 1997, defendant sought a dismissal for failure by the People to supply supporting depositions. In their unsuccessful opposition to the motion, the People alleged, inter alia, that the complainant police officer was never ordered to serve a supporting deposition; that "a supporting deposition will be filed and served upon the defendant within the statutory requirement of 30 days, from the date on which the Court orders such a deposition to be so served;" and that the simplified informations in this case were facially sufficient without supporting depositions.
The court below was correct in dismissing the simplified informations. CPL 100.25(2) provides that a defendant charged by a simplified information is "upon a timely request, entitled as a matter of right" to a supporting deposition of the complainant police officer and that "[u]pon such a request," the court must order the officer to serve a copy of the same within 30 days "of the date such request is received by the court, or at least five days before trial, whichever is earlier ..." Nowhere in the statutory language is there authority for making the 30-day period run, as urged by the People, from the date on which the court orders a deposition to be served.
The People call attention to the language of CPL 100.40(2) which states, "A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face." Certainly, said language does reflect the expectation of the Legislature that in the ordinary and proper sequence of events, the complainant officer would in fact be ordered by the court to serve and file the deposition following its receipt of defendant's request. This expectation is consistent not only with the requirements imposed on the court by CPL 100.25(2) but also those contained in court rules (People v. Thumser, 148 Misc.2d 472, 473, 567 N.Y.S.2d 571 [App.Term, 9th and 10th Jud.Dists. 1990] ). The language of CPL 100.40(2) does not, however, create a different time-frame for service and filing of the supporting deposition in the event that the complainant officer is not so ordered by the court. To the contrary, it expressly repeats that the period provided by CPL 100.25(2) is the time-frame for service of the deposition, and such time-frame is 30 days from the date of receipt of defendant's request by the court, or five days before trial, whichever is earlier.
The weight of case law also supports an interpretation of CPL 100.25(2) and 100.40(2) that requires the defendant to do no more than file a timely, written request with the court to become entitled to a supporting deposition as of right. In People v. Nuccio, 78 N.Y.2d 102, 104, 571 N.Y.S.2d 693, 575 N.E.2d 111, our Court of Appeals observed, "If a timely request for a supporting deposition is made, the failure to supply one renders the simplified information insufficient on its face (CPL 100.40[2] ) and subjects it to dismissal upon motion (CPL 170.35[1][a]; 170.30[1][a] )." Thus, the State's highest Court, while cognizant of the wording of CPL 100.40(2), noted no other precondition to the bringing of a dismissal motion by the defendant than a failure to be furnished with a supporting deposition in response to his timely request (ibid.; see also, People v. Thumser, supra, at 473-474, 567 N.Y.S.2d 571).
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