People v. Vierno

• Decision Date: 03 December 1993
• Citation: 606 N.Y.S.2d 557,159 Misc.2d 770
• Parties: The PEOPLE of the State of New York v. Robert VIERNO, Defendant.
• Court: New York City Court

Page 557

606 N.Y.S.2d 557

159 Misc.2d 770

The PEOPLE of the State of New York v. Robert VIERNO, Defendant.

Criminal Court of the City of New York Richmond County, AP 2.

Dec. 3, 1993.

Robert Baum, Legal Aid Soc. by William Cleary, New York City, for defendant.

William Murphy, Dist. Atty. by Michael Conroy, Asst. Dist. Atty., for People.

WILLIAM E. GARNETT, Judge.

The defendant has moved, pursuant to C.P.L. § 170.30(1)(a), for an order dismissing the accusatory instrument as defective within the meaning of C.P.L. § 170.35. C.P.L. § 170.35 provides that an accusatory instrument must meet the requirements specified in C.P.L. § 100.40.

Specifically, the defense argues that this instrument, whether denominated a simplified traffic information or an information charging an offense, does not satisfy the requirements of a proper accusatory instrument for the commencement of an action.

On September 7, 1993, the defendant was arrested for Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, a traffic infraction. V.T.L. § 511(1)(a). ¹

The District Attorney filed a uniform traffic ticket as a simplified traffic information for the purpose of commencing the action against the defendant. This instrument is approximately 7 1/4 inches long and 4 1/2 inches wide and is entitled "Complaint/Information". The front of this document was completed with the defendant's name, address and license number, a description of the vehicle which was allegedly operated by the defendant, and the time, date and place of the alleged infraction. The front portion also specified the charge in that the officer wrote, "VTL 511 Sub. 1" and "Aggravated Unlicensed Operator".

The back, or reverse, side of this document included factual allegations in a part of the ticket entitled: "Criminal Court Information (Describe Offense)". The allegations were that: "Operator stopped for speeding (VTL 1180A). Unable to produce license. Computer check revealed 2 suspensions on 2 different dates". The officer signed and dated this section of the ticket which also contained the following language above the officer's signature: "I personally observed the commission of the offense charged herein. False statements made herein are punishable as a class A Misdemeanor pursuant to Section 210.45 of the Penal Law, affirmed under the penalty of perjury."

The ticket was also accompanied at arraignment by a long-form affidavit of the Police Officer entitled, "Supporting Deposition--Suspended/Revoked Driver's License." This affidavit reiterated the officer's allegations that he had observed the defendant operating a motor vehicle and that a computer check of the records of the New York State Department of Motor Vehicles had revealed that the defendant's license had been suspended. Further, the affidavit alleged that the defendant's license was suspended for his failure to answer traffic "summons" [sic] and that all such "summons" [sic] have a preprinted warning that a failure to respond will result in a license suspension. Finally, the affidavit stated the practice of the Department of Motor Vehicles to automatically, by computer, suspend a defendant's license within four weeks of a failure to respond.

At arraignment, in addition to the ticket and the long-form affidavit, the District Attorney also submitted a N.Y.S.P.I.N. computer printout which indicated that the defendant's license had been suspended on March 27, 1993 and January 9, 1993 for failures to answer summonses in New York County.

Initially, the defense argues that the officer's arrest of the defendant pursuant to C.P.L. § 140.10(1)(a) and V.T.L. § 155, transformed the charge from a traffic infraction to an offense. The argument apparently follows that having been summarily arrested for an offense, not a traffic infraction, the defendant may not be charged with violating V.T.L. § 511(1)(a) in a simplified traffic information but must be prosecuted by a regular information. A violation alone may only be prosecuted by information or a prosecutor's information. see People v. Blake, 154 Misc.2d 660, 585 N.Y.S.2d 993 (N.Y.C. Criminal Court 1992).

This argument misapprehends the purpose of the last sentence of V.T.L. § 155 and the definition of "offense" in the Penal Law § 10.00(1). C.P.L. Section 140.10(1)(a) provides that a police officer may arrest a person for "[a]ny offense when he has reasonable cause to believe that such person has committed such offense in his presence". The last sentence of V.T.L. § 155 deems a traffic infraction an offense for the purpose of an arrest without a warrant. The sole purpose for the last sentence of V.T.L. § 155 is to give police officers the same authority when a traffic infraction is committed that they possess when a violation, for example, Disorderly Conduct, P.L. § 240.20, or Harassment, P.L. § 240.26, is committed in their presence. For this purpose alone, a traffic infraction is "deemed an offense." see People v. Abrams, 119 A.D.2d 682, 683, 501 N.Y.S.2d 110 (2nd Dept.1986).

The Penal Law defines an "offense" as conduct for which a sentence of imprisonment or a fine is provided. The word "offense" includes traffic infractions, violations, misdemeanors and felonies. An offense must be classified by one of these four categories. There is no generic Penal Law designation of an offense for these four categories of offenses are completely inclusive. ² A traffic infraction cannot become a violation for the definition of a violation expressly excludes traffic infractions. Penal Law § 10.00(3). Moreover, § 55.10(4) of the Penal Law provides that an offense designated a "traffic infraction" does not become a violation or a misdemeanor by virtue of the prescribed sentence.

Thus, the mere fact that the police officer employed the authority conferred on him by V.T.L. § 155 and C.P.L. § 140.10(1)(a) does not take this offense out of the Vehicle and Traffic Law, change this offense to a violation and preclude the use of a simplified traffic information as an appropriate accusatory instrument.

Next, the defense contends that the accusatory instrument in this case is not a simplified traffic information. Initially, the defense avers that the instrument is defective because it has improper headings on both sides, that it does not identify itself as a simplified traffic information, that it has printing on both sides, and has not been "prescribed by the commissioner of motor vehicles". Further, the defendant argues that the presence of factual allegations on the reverse side renders the document infirm as a simplified information.

A simplified traffic information is twice defined in the Criminal Procedure Law. C.P.L. §§ 1.20(5)(b) and 100.10(2)(a). Section 100.10(2)(a) includes the most comprehensive definition and § 1.20(5)(b) alludes to that full definition contained in Article 100. In pertinent part, § 100.10(2)(a) defines a simplified traffic information as:

"a written accusation by a police officer ... filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges."

The statute also makes explicit that a simplified traffic information is an alternative to a "regular information".

Section 100.40(2) governs the facial adequacy of a simplified traffic information. Such an information is facially sufficient when: "it substantially [emphasis added] conforms to the requirements therefor prescribed by or pursuant to law". C.P.L. § 100.40(2). Section 100.25(1) provides that a simplified information "must be substantially [emphasis added] in the form prescribed by the commissioner of motor vehicles". Thus, "substantial", not precise or exact, compliance is the standard to be applied in judging the facial sufficiency of a simplified traffic information. People v. Corn, NYLJ, Nov. 13, 1985, p. 15 cols. 3, 4 [App. Term 9th & 10th Jud.Dists.]

Subdivision two of C.P.L. § 100.25 requires, upon timely demand, that the police file a supporting deposition based on personal knowledge or information and belief providing reasonable cause to believe that the defendant has committed the offense charged. Reasonable cause may be bottomed on hearsay. C.P.L. § 70.10(2). Failure to provide this deposition renders the simplified information insufficient on its face. C.P.L. § 100.40(2).

V.T.L. § 225 provides that the commissioner of motor vehicles may promulgate regulations to adjudicate traffic infractions in local administrative tribunals. ³ Further, this section expressly authorizes a court having jurisdiction over a traffic infraction to enter a judgement of conviction. V.T.L. § 155 confers jurisdiction upon the criminal court to hear and determine traffic infractions.

Pursuant to the authority granted in V.T.L. §§ 225 and 226, the commissioner has prescribed the form to be utilized. 15 N.Y.C.R.R. Part 122 et seq. Section 122.2(a) provides that the ticket packet be 4 1/4 inches wide and 8 1/2 inches long. The complaint must include space for the motorist's name, address, date of birth, sex, license identification, vehicle description, registration information, violation description, time and place of appearance and complainant's name and affiliation. Section 122.2(i) creates a presumption that any ticket used by a police officer has been approved by the commissioner. Finally, "any variation from this procedure shall not affect the validity of any summons or complaint unless such variation results in a denial of due process." Section 122.4(a).

The ticket form utilized in this case "substantially" conforms to the prescriptions of the commissioner of motor vehicles as codified in 15 N.Y.C.R.R. Part 122 et seq. and is therefore not defective...