People v Delprete (Philip)
Annotate this CaseDecided on December 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
2017-1684 S CR
The People of the State of New York, Respondent,
against
Philip P. Delprete, Appellant.
Tilis Law Group (Harry Tilis of counsel), for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.
Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Alan M. Wolinsky, J.H.O.), rendered July 17, 2017. The judgment convicted defendant, after a nonjury trial, of using a portable electronic device while operating a motor vehicle, and imposed sentence. The appeal brings up for review the denial, as untimely, of defendant's motion to dismiss the simplified traffic information as jurisdictionally defective.
ORDERED that the judgment of conviction is reversed, on the law, defendant's motion to dismiss the simplified traffic information is granted and the fine, if paid, is remitted.
Defendant was charged in a simplified traffic information with using a portable electronic device while operating a motor vehicle (Vehicle and Traffic Law § 1225-d [1]). Prior to trial and within 45 days of arraignment, defendant moved to dismiss the simplified traffic information on the ground that it was jurisdictionally defective. The court denied the motion as untimely. After a nonjury trial, defendant was convicted of the charged offense.
On appeal, defendant contends that the District Court erred in denying his motion to dismiss the simplified traffic information as untimely, and that the court should have granted his motion because the accusatory instrument was jurisdictionally defective.
Vehicle and Traffic Law § 1225-d (1) provides that "no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion." For purposes of the statute, a "portable electronic device" includes a hand-held mobile telephone (Vehicle and Traffic Law § 1225-d [2] [a]) and "using" this device means "holding [it] while viewing, taking or transmitting images, playing games, or, for the purpose of present or future communication: performing a command or request to access a world wide web page, composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, instant messages, or other electronic data" (Vehicle and Traffic Law § 1225-d [2] [b]). Moreover, Vehicle and Traffic Law § 1225-d (4) provides that "[a] person who holds a portable [*2]electronic device in a conspicuous manner while operating a motor vehicle . . . is presumed to be using such device . . . [and] [t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not using the device within the meaning of this section."
A simplified traffic information is sufficient on its face when it substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25 [1]; 100.40 [2]; People v Ferro, 22 Misc 3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; People v Eshaghpour, 12 Misc 3d 134[A], 2006 NY Slip Op 51193[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]). Upon a timely request, a complainant police officer must file a supporting deposition and, to be considered sufficient, the supporting deposition in a traffic case initiated by a simplified traffic information must set forth facts which provide reasonable cause to believe that the defendant committed the offense charged (see CPL 100.25 [2]). The failure to file such a supporting deposition renders the simplified traffic information insufficient on its face (see CPL 100.40 [2]), subjecting it to dismissal upon motion (see CPL 170.30 [1] [a]; 170.35 [1]). Moreover, the absence of adequate factual allegations in a deposition in support of a jurisdictionally valid simplified traffic information can be waived if not timely raised (see People v Beattie, 80 NY2d 840 [1992]; People v Key, 45 NY2d 111, 116-117 [1978]; People v Kelleher, 39 Misc 3d 149[A], 2013 NY Slip Op 50948[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). Since defendant's motion to dismiss the simplified traffic information on legal insufficiency grounds was in writing, made within 45 days of his arraignment and prior to trial, the issue was not waived (see CPL 170.30 [3]; People v Beattie, 80 NY2d 840; People v Key, 45 NY2d at 116; People v Kelleher, 39 Misc 3d 149[A], 2013 NY Slip Op 50948[U]).
In the instant case, the allegations in the supporting deposition amount to little more than a conclusory assertion that defendant had violated Vehicle and Traffic Law § 1225-d (1) by alleging "OPER MV WHILE USING PROTABLE ELEC DEV." The simplified traffic information and supporting deposition fail to set forth any facts providing reasonable cause to believe that defendant violated Vehicle and Traffic Law § 1225-d (1) (see CPL 100.25 [2]; People v Bollag, 42 Misc 3d 149[A], 2014 NY Slip Op 50407[U] [App Term, 2d Dept, 9th and 10th Jud Dists 2014]), since the complaining officer alleged no facts identifying the portable device, or describing whether defendant was holding it and how he was "using" it (Vehicle and Traffic Law § 1225-d [2] [b]).
It should be noted that the supporting deposition is printed out on a page which also contains a CPL 710.30 notice of the People's intent to offer a statement by defendant at trial. Even assuming that the statement by defendant is considered part of the factual allegations contained in the supporting deposition, defendant's statement similarly fails to contain facts which provide reasonable cause to believe that he committed the offense charged. Consequently, the simplified traffic information is insufficient on its face.
In view of the foregoing, we need not pass upon the issue raised on appeal regarding motion practice rules of the Suffolk County Traffic and Parking Violations Agency.
Accordingly, the judgment of conviction is reversed and defendant's motion to dismiss the simplified traffic information is granted.
GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2018
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