People v Hollinger (Robert)
Annotate this CaseDecided on March 22, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and LIPPMAN, JJ
2006-241 N CR.
The People of the State of New York, Respondent,
against
Robert C. Hollinger, Appellant.
Appeal from judgments of the Justice Court of the Village of Old Westbury, Nassau County (Edward Joachim, J.), rendered January 26, 2006. The judgments convicted defendant, after a nonjury trial, of speeding, making an unsafe lane change, and following too closely.
Judgments of conviction reversed on the law, simplified informations dismissed and fines, if paid, remitted.
On July 27, 2003, defendant was issued uniform traffic tickets charging him with speeding by driving 75 miles per hour in a 45 mile per hour posted construction zone (Vehicle and Traffic Law § 1180 [f]), making an unsafe lane change (Vehicle and Traffic
Law § 1128 [a]), failing to signal when changing lanes (Vehicle and Traffic Law § 1163 [d]), and following too closely (Vehicle and Traffic Law § 1129 [a]). The front of the tickets directed defendant to appear in the Justice Court of the Village of Old Westbury on September 18, 2003, thus serving as an "appearance ticket" under CPL 150.10.
Defendant entered pleas of not guilty by completing Part "B" on all four appearance tickets. Defendant signed the appearance tickets, entered the address in New York State where he could be contacted, and requested supporting depositions. The appearance tickets were then mailed to the Justice Court together with an accompanying letter. In said letter, defendant advised the court that he was an out-of-state resident and could only be reached at his New York State address through August 15, 2003. He further stated that from August 15, 2003 through [*2]August 22, 2003, he could be reached at his residence in Maryland, and that he would be leaving the country on business on August 23, 2003 and would not return until July 2004. The court received the letter and the accompanying appearance tickets on August 1, 2003. Following receipt, the court, by order dated August 25, 2003, directed the issuing officer to provide defendant with a supporting deposition at his Maryland address within 30 days of the date of the order and at least 5 days prior to the adjourned court date shown, and to file a second copy and affidavit of service with the court. The order further stated that if service is effected by mail, it must be so stated in the affidavit. The order, however, did not set forth an adjourned date. On that same date, the court advised defendant that his not guilty pleas had been received and accepted, that it would schedule a conference with the assistant district attorney and notify defendant of the time and date.
The issuing officer prepared a supporting deposition and filed a copy containing an affidavit of service with the court. The affidavit, insofar as it relates to service, stated: "I have served a copy of this deposition on the above named individual or the attorney for the defendant by depositing a true copy in a post-paid wrapper in an official depository under the exclusive care and custody of the U.S. Postal Service on 08-27, 2003."
Defendant, by letter dated August 29, 2003, advised the court that he had not received the supporting depositions and requested that it dismiss the simplified informations for failure to provide same. Although the record fails to contain any response to defendant's request, the request was premature (see CPL 100.25 [2]). Subsequent correspondence between the court and defendant regarding conference and trial dates, including adjournments, took place over a protracted period of time. Defendant next raised the failure to receive a supporting deposition in a letter dated November 2, 2005, wherein he sought dismissal of the charges. It appears that the court's response was to direct defendant to appear for trial on January 26, 2006.
Prior to trial, defendant requested dismissal based on the officer's alleged failure to serve him with the supporting deposition. The parties agreed that, in lieu of a pre-trial hearing, the People would establish proof of service of the supporting deposition during trial. The court requested that the People elicit facts from the officer pertaining to the supporting deposition, including whether or not it was returned to him after the mailing. No such testimony was presented at trial. The court stated that it accepted the affidavit of service as proof of mailing and that defendant failed to overcome the presumption that a proper mailing occurred.
Where, as here, a defendant is charged with Vehicle and Traffic Law violations by simplified traffic informations, and makes a timely request for supporting depositions, he is entitled as of right to said supporting depositions, i.e., verified statements containing factual allegations supplementing those contained in the simplified informations and which support or tend to support the charges (see CPL 100.20, 100.25 [2]). The court, upon a timely request, must order the complainant police officer to serve the supporting depositions within 30 days of the court's receipt of the request, or at least 5 days before trial, and to file with the court a copy of the depositions together with proof of service (CPL 100.25 [2]). Failure to timely serve and file the supporting depositions renders the simplified informations insufficient on their face (CPL 100.40 [2]) and subjects them to dismissal upon motion (see CPL 170.35 [1] [a]; 170.30 [1] [a]; see also People v Nuccio, 78 NY2d 102 [1991]; People v Titus, 178 Misc 2d [1998], lv denied 92 NY2d 986 [1998]). [*3]
The affidavit of service failed to set forth the address to which the supporting deposition was mailed. Accordingly, the People failed to establish that a proper mailing occurred ( see CPLR 2103 [c], [f] [1]; Hasselbarth v Paredes, 110 AD2d 818 [1985]; cf. People v Godoy, 180 Misc 2d 771 [1999]) and thus, there was no proof that supporting depositions were ever served. In the absence of such proof, the simplified traffic informations are insufficient.
In view of the foregoing, the other issues raised on appeal need not be considered.
McCabe, J.P., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 22, 2007
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