People v. Utsett

Decision Date21 July 2016
Docket Number2016-0308
Citation2016 NY Slip Op 26228
PartiesPeople of the State of New York, v. Rachel L. Utsett, Defendant
CourtNew York County Court

For the People:

Hon. Kathleen B. Hogan, Warren County District Attorney, (Marat Shkolnik, Esq., of counsel)

For Defendant:

Marcy I. Flores, Esq., Warren County Public Defender, (Bryan M. Racino, Esq., of counsel)

Gary C. Hobbs, J.

On April 29, 2016, the defendant was arrested and charged by Simplified Traffic Informations with the offenses of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree [Vehicle and Traffic Law § 511(1)(a)] and Driver's View Obstructed [Vehicle and Traffic Law § 375(30)]. The defendant's initial appearance was scheduled for May 12, 2016, and the defendant did appear and was arraigned on that date.

The defendant has filed an Omnibus Motion seeking various relief, together with an affirmation of Bryan M. Racino, Esq., Warren County Assistant Public Defender, attorney for the defendant, in support of said motion. The People have responded to the defendant's motion with an affirmation in opposition by Marat Shkolnik, Esq., Warren County Assistant District Attorney. Upon a reading and filing of the motion and opposition papers, and with due deliberation thereon, it is the decision and order of this Court as follows.

Defendant's Motion to Dismiss the Simplified Traffic Informations

On May 31, 2016, the defendant served the People with her CPL § 240.20 discovery demands, which are titled "Misdemeanor Demand for Discovery and Bill of Particulars". On page 5, paragraph 18, of her discovery demands, the defendant requested that "[i]n the event that any of the charges against this defendant include a violation of the Vehicle and Traffic Law, the defendant hereby demands a supporting deposition . . ." (Emphasis added). The defendant's request for a supporting deposition was contained within other discovery demands, which sought disclosure of items such as photographs, drawings, and reports of scientific tests or experiments from the People. A copy of the Defendant's discovery demands, however, were then filed with this Court on June 1, 2016.1

The Defendant moves this Court for an order dismissing the simplified traffic informations pursuant to CPL §§ 100.25(2) and 100.40(2) on the grounds that the defendant timely requested, but never received, a supporting deposition. In response, the People have attached a supporting deposition, dated July 18, 2016, from Officer Christopher J. Perilli, to their response to the defendant's omnibus motion. [Shkolnik Affirmation, last exhibit]. The People further assert that the defendant failed to properly request a supporting deposition, because the defendant's request was contained in the Defendant's Demands for Discovery, rather than making a request directly to this Court. [Shkolnik Affirmation, paragraph 16].

The issue before this Court is whether the defendant's request for a supporting deposition, which was contained in the defendant's CPL § 240.20 discovery demands, constitutes a proper request for a supporting deposition under CPL § 100.25. If so, the defendant asserts that the charges must be dismissed.

It is well settled that a defendant arraigned upon a charge contained in a simplified traffic information may request, and is entitled as of right, a supporting deposition by the complainant, police officer or public servant. If the defendant makes no request, then the right to a supporting deposition is waived and prosecution may proceed on the original instrument. However, if a timely request for a supporting deposition is made, then the failure to supply one renders the simplified information insufficient on its face and subjects it to dismissal. People v Nuccio, 78 NY2d 102, 104 (1991), citing, CPL 100.40[2], CPL 170.35[1][a] and CPL 170.30[1][a]; People v. Curtis, 166 Misc 2d 753, 634 N.Y.S.2d 981, 981—82 (Perinton Just. Ct. 1995); People v. DeLuca, 166 Misc 2d 313, 633 N.Y.S.2d 249, 251 (Yonkers City Ct. 1995); People v. Malone, 166 Misc 2d 54, 631 N.Y.S.2d 223, 223—24 (Suffolk Co. Dist. Ct. 1995); People v. Sperling, 165 Misc 2d 1024, 631 N.Y.S.2d 221, 222 (Suffolk Co. Dist. Ct. 1995); People v. Smith, 163 Misc 2d 353, 621 N.Y.S.2d 449, 456 (Perinton Just. Ct. 1994); People v. Rossi, 154 Misc 2d 616, 587 N.Y.S.2d 511, 514 (Muttontown Just. Ct. 1992); Gerstenzang & Sills, Handling the DWI Case in New York § 17:5.

CPL 100.25(2) defines a "timely" request for a supporting deposition as one that is made "not later" than 30 days after the date the defendant is first required to appear, except as provided in CPL 100.25(3), which empowers the court to authorize service of a demand after the 30—day period has expired where one of the offenses charged is a misdemeanor and where the defendant moves for leave to serve the demand within 90 days of the date he or she is first required to appear. [CPL 100.25(2) and (3)].

Thus, even if the simplified traffic information charges the defendant with a misdemeanor, the defendant must still request the supporting deposition within the 30 day time period or, in the alternative, the defendant must seek leave from the Court for "good cause" shown to serve the request within 90 days of her first required court appearance. People v Brady, 196 Misc 2d 993, 998 (NY Dist Ct 2003); Criminal Procedure Law § 100.25, Practice Commentaries, Preiser 2013.

More importantly, CPL § 100.25 requires that the defendant's request for a supporting deposition to be made to the court, not just to the People. See: CPL § 100.25(2); People v Schlosser, 129 Misc 2d 690, 690 (NY Dist Ct 1985); Handling a Criminal Case in New York § 3:76 (Muldoon 2015). As is indicated in the treatise, New York Driving While Intoxicated § 12:9 (2d ed., 2015), the "[s]tatutory authority is silent as to the precise manner in which the request is to be made. Even so, some guidance is inferentially afforded by the Legislature's use of the phrase [u]pon such a request, the court must order the complainant police officer or public servant to serve a copy . . .' Such phraseology is consistent with the interpretation that the only notification necessary to trigger the operation of the statute is a request upon the Court." (Emphasis added).

The defendant's obligation to make a request directly to the Court is consistent with CPL's statutory framework. Pursuant to CPL § 100.25(2), when a timely request is made, the court must then order the police officer or public servant to serve defendant with a copy of supporting deposition within 30 days of the demand or at least five days before trial, whichever is earlier, and to file the supporting deposition with the court. Thus, where the court receives a proper request, but fails to order the supporting deposition, the simplified information must still be dismissed, even though the People and arresting officer were not aware of the defendant's request. People v Zagorsky, 73 Misc 2d 420, 425 (County Court, Broome County, 1973)(It is the responsibility of the court to order the complainant police officer to prepare and file a supporting deposition with the court and failure to so order in advance of trial calls for dismissal of the information).

In the present case, the defendant's request, which was contained within a CPL § 240.20 discovery demand, is not a proper request made to this Court, despite the fact that a copy of the defendant's discovery demands were filed with this Court.

A trial court is not a party required to review or respond to the defendant's CPL § 240.20 discovery demands. See: CPL § 240.20(2)(which requires the "prosecutor to make a diligent, good faith effort to ascertain the existence of demanded property and to cause such property to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided, that the prosecutor shall not be required to obtain by subpoena duces tecum demanded material which the defendant may thereby obtain."). Even though the defendant filed a courtesy copy of her discovery demands with this Court on June 1, 2016, and within the 30 day time period, there was nothing contained in either the caption of the Defendant's Discovery Demands nor in any correspondence sent to this Court that notified this Court that the defendant was requesting an order for the arresting officer to provide a supporting deposition.

If this Court were to hold otherwise, then criminal courts would be required to review each and every discovery demand made by a defendant to the People to determine if some part of the defendant's demands somehow contains a request for a court order directing the service and filing of a supporting deposition. This requirement would place an undue burden on our trial courts, and is not required under the Criminal Procedure Law. To the contrary, the statutory scheme of CPL § 100.25 places the burden on the defendant to make a proper request for a supporting deposition directly to the Court, rather than inserting such a request in a document that is served, noticed or addressed to a third party. See e.g.: People v Titus, 178 Misc 2d 687, 689 (App Term, Second Dept., 1998)(the defendant needs to file a timely, written request with the court to become entitled to a supporting deposition as of right).

Based on the foregoing, the defendant failed to make a proper request for a supporting deposition directly to this Court as required pursuant to CPL § 100.25. As a result, the defendant waived her right to obtain a supporting deposition. However, even if this Court considered the defendant's present omnibus motion as an application seeking leave to request a supporting deposition within 90 days of the defendant's initial date of appearance (i.e.; by August 10, 2016), then the defendant's motion would still be denied as being moot. On July 19, 2016, within 30 days of the Defendant's Omnibus Motion, the People served and filed a supporting...

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