People v Palmer

[*1] People v Palmer 2008 NY Slip Op 52399(U) [21 Misc 3d 1136(A)] Decided on November 24, 2008 Just Ct Of Vil. Of Hastings-on-Hudson, Westchester County DiSalvo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 28, 2008; it will not be published in the printed Official Reports.

Decided on November 24, 2008
Just Ct of Vil. of Hastings-on-Hudson, Westchester County

The People of the State of New York, Plaintiff,

against

Stanley Palmer, Defendant,



UTT LS 4484019 4

Joseph A. DiSalvo, J.

By his motion, Defendant seeks an order of this Court dismissing the Simplified Traffic Information against Defendant on the ground that the Simplified Traffic Information together with the Supporting Deposition are facially insufficient because neither document identifies whether the officer issuing the ticket did so on his own observation or upon information and belief. For the reasons set forth below, this Court denies the motion by Defendant.

BACKGROUND

Officer Sean Ryan issued Simplified Traffic Information LS484019 4 on February 15, 2008 alleging that, at 11:25 AM on that date, Defendant violated Vehicle & Traffic Law §1180(d) by traveling at the rate of 55 miles per hour in a 30 mile per hour zone on Broadway in Hastings-on-Hudson. The ticket describes the violation as "speed in zone (radar visual)" and is affirmed under penalty of perjury by the police officer who signed in the section of the uniform ticket marked "(Officer's Signature)."The section below where Officer Ryan signed is markedfor "Officer Operating Radar" and was unsigned.

Officer Ryan issued a Supporting Deposition at the time he issued the ticket. The Supporting Deposition set forth that the offense occurred on Broadway at its intersection with Tompkins Avenue in front of 360 Broadway, that Defendant's speed was 55 MPH in a 30 MPH zone, and that Defendant's speed was measured by "visual estimate 50" and by "radar." Section 9 of the Supporting Deposition reads "Charge based on Officer: { } Direct observation { } [*2]Information & Belief" but was left without either bracket being checked. The deposition was affirmed under penalty of perjury by Officer Ryan on February 15, 2008.

Defendant moves for dismissal on the grounds that the Simplified Traffic Information and Supporting Deposition are insufficient because Section 9 of the deposition should have been completed and since it was not completed, Defendant has not been informed whether it was Officer Ryan or another officer who operated the radar equipment and made the visual observation. Defendant cites Criminal Procedure Law §100.40(1) and People v. Alejandro 70 NY2d 133 (1987) for the proposition that the Information and Supporting Deposition taken together must contain non-hearsay allegations establishing if true every element of the charge and defendant's commission thereof.

DISCUSSION

Although Criminal Procedure Law §100.40(1) does provide, as Defendant cites, that non-hearsay allegations must support every element of an offense charged by an Information and defendant's commission thereof, that section of the law pertains to Informations generally, but not to Simplified Traffic Informations, which are governed by subdivision(2) and not subdivision (1) of CPL §100.40.

The sufficiency of a Simplified Traffic Information is evaluated by a lesser standard: that the ticket itself must be substantially in the form prescribed by the Commissioner of Motor Vehicles [defendant herein does not raise any issues with respect to the form used] and that, if defendant so demands, he or she is entitled to be served with a supporting deposition "based either on personal knowledge or information and belief" that provides "reasonable cause" to believe that defendant committed the offense charged, see CPL §100.40(2) and CPL §100.25(1) and (2).

Alejandro, supra , itself concisely draws the distinction between an Information and a Simplified Traffic Information. First, Alejandro describes CPL §100.40(1) as requiring, for the factual portion of the accusatory instrument, two conditions for facial sufficiency: that the allegations provide reasonable cause to believe that defendant committed the offense; and that non-hearsay allegations establish, if true, every element of the offense charged. Then, Alejandro points out that the "reasonable cause" requirement is applicable not only to informations but also to the other local criminal court accusatory instruments, including Simplified Traffic Informations, but that the "prima facie case" requirement - that the factual part establish every element of the offense charged - applies to Informations alone, Alejandro, at 137.

Thus, it is clear that, pursuant to CPL §100.40(2), the Simplified Traffic Information and Supporting Deposition herein need not contain non-hearsay allegations establishing, if true, every element of the speeding charge against Defendant; rather, the Simplified Traffic Information and Supporting Deposition herein only must provide this Court with reasonable cause to believe that Defendant was speeding in violation of V & T §1180(d), Alejandro, at 137. [*3]

As the Court noted in People v. Greenfield, 9 Misc 3d 1113(A), WL 2335491, 2005 Slip Op 51518 (Justice Court, Muttontown, Nassau Co. 2005): ... as a general rule ... a Supporting Deposition must contain enough facts to allege all of the prerequisites of the offense specified in the statute, but only that. In other words, a supporting deposition need say what the People must prove, not how they will prove it. Likewise, a Supporting Deposition need not state all the evidentiary facts available to the deponent, but rather only enough facts to provide reasonable cause to believe that the statute was violated by the defendant, leaving for trial the question whether the People will be able to prove that. People v. Ortiz. 146 Misc 2d 594, 596, 558 NYS2d 784. See also People v. Miles, 64 NY2d 731, 732-33, 485 NYS2d 747, 475 NE2d 118."

Thus, whether the People will be able to prove what they have alleged in the Simplified Traffic Information will be left for trial.

Whether Defendant may be entitled to some further information with respect to which police officer operated the radar equipment is within the discretion of the court, as in People v. Greenfield, supra . Thus, Defendant herein shall be permitted to demand a Bill of Particulars as to the identity of the police officer making the personal observation and operating the radar device.[FN1]

CONCLUSION[*4]

For the foregoing reasons, this Court concludes: that the People need not set forth how they will prove that which they allege in a Simplified Traffic Information; that a Simplified Traffic Information together with a Supporting Deposition must provide allegations of fact that give a Court the ability to conclude that there is reasonable cause to believe that Defendant committed the offense charged; that the People have given this Court allegations of fact sufficient for it to concluder that there is reasonable cause to believe that Defendant committed a violation of V & T §1180(d); and that, therefore, Defendant's motion must be denied.

The foregoing constitutes the Opinion and Order of this Court.

___________________________________

Joseph A. DiSalvo, Village Justice Footnotes

Footnote 1:

As the court stated in Greenfield:

"There may be circumstances where, notwithstanding the service of a supporting deposition, the defendant may lack information he/she needs to prepare adequately for trial. Thus, in an appropriate case, a defendant may obtain further information in a traffic case through pre-trial discovery. People v. Correia, 140 Misc 2d 813, 818; People v. Gutterson, 93 Misc 2d 1105, 1108- 09. As one court has aptly explained, while "there is no general right to discovery" in a such a case, the court may direct further disclosure since "it is fundamental to our system of justice that defendant must be apprised of the facts and law which he is being accused of having violated". Chess, 149 Misc 2d at 433. Prior to the replacement of the Code of Criminal Procedure in 1970 with the Criminal Procedure Line, CCP §147-g allowed defendants to demand and get a bill of particulars. CPL §100.45(4), however, eliminated that right by instead enumerating the offenses for which a bill of particulars is required; they do not include traffic offenses. Cohen, 131 Misc 2d at 899. Thus, the only statutory right for disclosure in a traffic case is now the right to get a supporting deposition under CPL §100.25(2). Chess, 149 Misc 2d at 433; See also People v. Siebemock, 65 Misc 2d 181. Whether a defendant is to obtain further information is now strictly a matter of discretion for the Court. Rose, 2005 NY SLIP Op 25126, NY Misc LEXIS 629 at **6-7; Correia, 140 Misc 2d at 818."