People v Morales
Annotate this CaseDecided on December 15, 2006
Justice Court of Village of Port Washington North, Nassau County
People of the State of New York,
against
Inga Morales, Defendant.
LX-3230205
Prosecutor:
Alan M. Nelson, Esq. (For the People)
3000 Marcus Avenue
Lake Success, New York 11042
Counsel for Defendant:
Keith A. Lavallee, Esq. (For Defendant)
4 West Gate Road
Farmingdale, New York 11735
Sheldon M. Greenbaum, J.
Defendant has moved to dismiss this proceeding pursuant to §§100.20, 100.25, 100.40, 170.30 and 170.35 of the Criminal Procedure Law, alleging, as the sole basis for dismissal, that a supporting deposition was not served upon Defendant within the time prescribed by §100.25 of the Criminal Procedure Law.
On this motion, the Court has received and considered the following submissions: (i) Defendant's Notice of Motion, dated November 8, 2006; (ii) the Affirmation of Defendant's Attorney, Keith A. Lavellee, Esq., dated November 8, 2006, with annexed exhibits ("Lavallee 11/8/06 Aff."); (iii) the Affirmation of the Village Prosecutor, Alan M. Nelson, Esq., dated November 18, 2006 ("Nelson 11/18/06 Aff."); (iv) the Reply Affirmation of Keith Lavallee, Esq., dated November 27, 2006 ("Lavallee 11/27/06 Reply Aff."); (v) the Affirmation of Alan M. Nelson, Esq., dated December 13, 2006 ("Nelson 12/13/06 Aff."); and (vi) the Affidavit of the Clerk of this Court, Linda Kropacek, sworn to December 14, 2006, with annexed exhibit ("Kropacek 12/14/06 Aff.").
The following facts are not disputed:
1.On September 27, 2006, Defendant was charged, by a simplified traffic information, with driving a motor vehicle at a speed of 50 miles per hour in a 30 mile per hour zone, in violation of §1180(d) of the Vehicle and Traffic Law (Lavallee 11/8/06 Aff., ¶ 3; Nelson 11/18/06 Aff., ¶ 4).
2.By letter addressed to this Court, bearing a date of September 28, 2006 (the "9/28/06 Letter"), counsel for Defendant, among other things, entered a plea of not guilty on behalf of Defendant, pursuant to §170.10 of the Criminal Procedure Law, and timely requested a supporting deposition, pursuant to §100.25 of the Criminal Procedure Law (Lavallee 11/8/06 Aff., ¶ 3; Exhibit B to Lavallee 11/8/06 Aff.; Nelson 11/18/06 Aff., ¶ 4; Nelson 12/13/06 Aff., ¶ 6; Kropacek 12/14/06 Aff., ¶ 5).
3.On November 1, 2006, a supporting deposition was mailed to counsel for Defendant (Lavallee 11/8/06 Aff., ¶ 3; Exhibit C to Lavallee 11/8/06 Aff.; Nelson 11/18/06 Aff., ¶¶ 6, 12; Lavallee 11/27/06 Aff., ¶ 3; Nelson 12/13/06 Aff., ¶ 9; Kropacek 12/14/06 Aff., ¶¶ 8, [*2]9).
Section 100.25 of the Criminal Procedure Law provides, in pertinent part, that a defendant charged with a traffic offense by simplified information, upon timely demand, has an absolute right to be served with a supporting deposition within 30 days of receipt by the Court of such demand:
"A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged...Upon such a request, the court must order the complainant police officer of public servant to serve a copy of such a supporting deposition upon the defendant or his attorney, within thirty days of the date such request is received by the court..." (Criminal Procedure Law §100.25(2)) (emphasis added). See also People v. Tyler, 1 NY3d 493, 808 NE2d 334, 776 NYS2d 199 (2004); People v. Aucello, 146 Misc 2d 417, 558 NYS2d 436 (App. T. 2nd Dept. 1990); People v. De Feo, 77 Misc 2d 523, 355 NYS2d 905 (App. T. 2nd Dept. 1974).
The issue to be determined by this Court is the date upon which this Court received the 9/28/06 Letter which demanded the supporting deposition, thereby triggering the 30 day time period within which to serve that supporting deposition upon counsel for Defendant.
Based on the submissions of the parties, this Court makes the following findings of fact:
1.The face of the 9/28/06 Letter states that it purportedly was sent to this Court "Via Fax & mail [sic]: 883-5926".
2.Significantly, however, no facsimile transmission receipt has been annexed to the moving Lavallee 11/8/06 Aff., the Lavallee 11/27/06 Aff., or otherwise furnished to this Court which would evidence receipt by this Court of the 9/28/06 Letter by facsimile.
3.Moreover, the Clerk of this Court has asserted that no facsimile transmission of the 9/28/06 Letter was received by the Court from counsel for Defendant (Kropacek 12/14/06 Aff., ¶ 7).
4.In fact, counsel for Defendant claims that this Court received the 9/28/06 Letter not on September 28, 2006, but rather on September 30, 2006 (Lavallee 11/8/06 Aff., ¶ 3). The Lavallee 11/8/06 Aff. specifies neither the method of transmission of the 9/28/06 Letter which was claimed to have been received by the Court on September 30, 2006, nor the basis of knowledge by which counsel for Defendant has affirmed that this Court received the 9/28/06 Letter on September 30, 2006.
5.This Court takes judicial notice of the fact that September 30, 2006 was a Saturday (See also Kropacek 12/14/06 Aff., ¶ 6).
6.Both this Court and the Village Hall in which this Court is located are closed on Saturdays and Sundays (Kropacek 12/14/06 Aff., ¶ 6).
7.This Court first received the 9/28/06 Letter not on Saturday, September 30, 2006, as counsel for Defendant claims, but rather on Monday, October 2, 2006, as reflected by the [*3]"received" stamp placed by the Clerk of this Court on that letter (Kropacek 12/14/06 Aff., ¶ 6; Exhibit 1 to Kropacek 12/14/06 Aff.).
8.The supporting deposition was served on November 1, 2006 (Lavallee 11/8/06 Aff., ¶ 3; Exhibit C to Lavallee 11/8/06 Aff.; Nelson 11/18/06 Aff., ¶¶6, 12; Lavallee 11/27/06 Aff., ¶ 3; Nelson 12/13/06 Aff., ¶ 9; Kropacek 12/14/06 Aff., ¶¶ 8, 9).
Based on the foregoing findings of fact, this Court reaches the following conclusions of law:
1.The 30 day period for service of a supporting deposition only began to start on Monday, October 2, 2006, when the Village first received the 9/28/06 Letter demanding that supporting deposition, rather than on either: (i) September 28, 2006 (since no evidence of a facsimile transmission of that 9/28/06 letter has been offered to this Court); or (ii) September 30, 2006 (since the Court was closed on that and the successive weekend days, and since counsel has provided no basis for his claim that the 9/28/06 Letter in fact was received by the Court on Saturday, September 30, 2006. See also NY Gen. Constr. Law, §25-a.
2.The supporting deposition was timely served on November 1, 2006, within 30 days of its receipt by this Court.
Accordingly, Defendant's motion to dismiss is denied without prejudice to renewal upon a probative showing: (i) that this Court received the 9/28/06 Letter prior to October 2, 2006; and (ii) that Defendant has a reasonable excuse for her failure to have made such a probative showing in the two sets of motion papers already submitted to this Court.
The foregoing constitutes the decision and order of this Court.
Dated:Port Washington, New York
December 15, 2006
______________________________
Sheldon M. Greenbaum
Village Justice,
Village of Port Washington North
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