People v Garrido-Sanchez (Jorge)

[*1] People v Garrido-Sanchez (Jorge) 2012 NY Slip Op 52468(U) Decided on December 24, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 24, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., IANNACCI and LaSALLE, JJ
2011-1742 OR CR.

The People of the State of New York, Appellant,

against

Jorge A. Garrido-Sanchez, Respondent.

Appeal from an order of the Justice Court of the Town of Wallkill, Orange County (Patrick S. Owen, J.), entered April 21, 2011. The order granted defendant's motion to dismiss two simplified traffic informations for facial insufficiency.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the two simplified traffic informations is denied, the simplified traffic informations are reinstated, and the matters are remitted to the Justice Court for all further proceedings.

The People appeal from an order granting defendant's motion to dismiss two simplified traffic informations charging him with, respectively, driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), based upon the same incident, upon the ground of facial insufficiency due to an alleged failure to file and serve a supporting deposition (see CPL 100.40 [2]; 170.30 [1] [a]; 170.35 [1] [a]).

In our opinion, the Justice Court erred in granting defendant's motion to dismiss the simplified traffic informations. Defendant had 30 days from the appearance date stated in the simplified traffic informations and appearance tickets to demand a supporting deposition (CPL 100.25 [2]), and he failed to do so. Even assuming that defendant never received a written notice [*2]in said instruments, or otherwise, of his right to a supporting deposition, it would still have been incumbent upon him to demand a supporting deposition within 30 days of his plea of not guilty (id.; cf. CPL 150.10), and he failed to make such demand within that time period. Because the simplified traffic informations charging driving while intoxicated involved misdemeanors, the Justice Court would have had the discretion, for good cause shown and consistent with the interest of justice, to grant a motion by defendant to extend his time to make such a demand within 90 days of the appearance date provided in said instruments, but not beyond such 90-day period (CPL 100.25 [3]), but defendant failed to make his demand within such 90-day period. Thus, defendant's demand for a supporting deposition was untimely (32 Carmody-Wait 2d § 178:37, at 425). Furthermore, defendant's retention of an attorney after the expiration of his time to make a timely demand did not serve to extend that time (People v Sperling, 165 Misc 2d 1024, 1026 [Dist Ct, Suffolk County 1995]).

In view of the foregoing, the other contentions raised by defendant are rendered academic. Accordingly, the order is reversed, defendant's motion to dismiss the two simplified traffic informations is denied, the simplified traffic informations are reinstated, and the matters are remitted to the Justice Court for all further proceedings.

LaCava, J.P., Iannacci and LaSalle, JJ., concur.
Decision Date: December 24, 2012