People v Mazzeo

[*1] People v Mazzeo 2005 NY Slip Op 51945(U) [10 Misc 3d 1053(A)] Decided on November 29, 2005 Nassau District Court Kluewer, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2005
Nassau District Court

The People of the State of New York, Plaintiff,

against

Maribel Mazzeo, Defendant.



NA 13121/05



Honorable Denis E. Dillon, District Attorney

By: Ali Ajamu, Esq., ADA

240 Old Country Road

Mineola, NY 11501

Huwel & Mulhern

By: George A. Huwel, Esq.

11 New Hyde Park Road

Franklin Square, NY 11010

Susan T. Kluewer, J.

Defendant's motion for an order dismissing six of seven simplified traffic informations on account of a failure to serve supporting depositions, and compelling the People to respond to a demand for a bill of particulars, is granted to the extent that what are designated as counts 3, 4, 5, 6, 7, and 8 are dismissed.

Defendant stands accused, by long form information, of criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03) on account of an incident that occurred on June 28, 2005. That charge is designated as count 1. She also stands accused by seven simplified traffic informations, each specifying an appearance date of June 29, 2005 and each joined together with the long form information under this docket (but cf. CPL 100.15[3]), of driving with [*2]an unlawful blood alcohol content (designated count 2), reckless driving (designated count 3), driving above the posted speed limit (designated count 4), failing to maintain her driving lane (designated count 5), failure to yield to an emergency vehicle (designated count 6), passing a red light (designated count 7), and (designated count 8) driving without her headlights illuminated (see Vehicle and Traffic Law §§ 1192[2], 1212, 1180[d], 1128[a], 1144[a], 1111[d][1], 375[2][a]). These incidents are alleged to have occurred at the same time and place, and on the same date, as the alleged Penal Law violation. A "D.W.I. SUPPORTING DEPOSITION AND BILL OF PARTICULARS" pertaining to the alleged violation of Vehicle and Traffic Law § 1192(2) is annexed to the accusatory documents. Defendant was arraigned on all counts on June 29, 2005. The People have served a "710.30" notice and "VDFs."

The court file does not bear the highlighted notation that, as a general rule, is made by the clerk when a defendant, either at arraignment or thereafter by mail, serves a demand for a supporting deposition pursuant to CPL 100.25. In the court file, however, is a document entitled "REQUEST FOR A BILL OF PARTICULARS," behind which is stapled a "DEMAND FOR SUPPORTING DEPOSITIONS," behind which is stapled, in turn, the envelope, addressed to "Clerk, District Court," in which both documents arrived at the court clerk's office. It is apparent that the two documents, although sent in the same envelope, were stapled together after their arrival in the clerk's office, but no cover letter notifying the clerk of the action requested accompanies either of these documents. Each bears the endorsement of Defendant's attorney of record (see CPLR 2101[d]), and each is noticed, first, to the District Attorney (by certified mail, return receipt) and second, to the "Clerk, District Court." Each document is dated July 28, 2005, but only the first page of the request for a bill of particulars bears the court clerk's "time-date" stamp. Although not completely legible, the "time-date" stamp appears to read August 1, 2005, 3:05 p.m. The four-page request for a bill of particulars calls for production of "records of analysis" of any chemical test administered to Defendant, specified information about the person who conducted any such test, specified information about any person who interpreted the test to determine Defendant's blood alcohol content, specified information about the chemicals used during the test, specified information about the machine used to conduct that test, schematic diagrams of any such machine, and other specified information about the conduct of the test. The demand for supporting depositions, which prominently specifies that it is made pursuant to CPL 100.25, bears the summons numbers of the simplified traffic informations other than that by which Defendant is charged, via what is designated as count 2, with violating Vehicle and Traffic Law § 1192. The court has not ordered that the complainant police officer serve and file supporting depositions (see CPL 100.25[2]). Moreover, the People did not timely respond to Defendant's request [*3]for a bill of particulars.

Defendant now moves for the relief noted above. In support, she annexes a copy of the affidavit attesting to service by mail of the demand for supporting depositions and the request for a bill of particulars on the District Attorney, and on the clerk of this court, on July 28, 2005. Insofar as she seeks dismissal of what are designated as counts 3 through 8, she points to the failure of "the People" to "supply" supporting depositions, and urges that "as a result of the District Attorney's failure" to supply the supporting depositions, "the six traffic tickets [other than the ticket charging Defendant with violating Vehicle and Traffic Law § 1192(2)] must be dismissed." Insofar as she seeks an order compelling compliance with the request for a bill of particulars, Defendant posits that she needs a response in order to prepare for trial, and points out that the People have not refused (see CPL 200.95[4]) to comply.

During the pendency of the motion, the People served a response to the request for a bill of particulars. Like Defendant, they appear to regard a bill of particulars a device for clarifying the pleadings as if it were a discovery device (but see People v. Davis, 41 NY2d 678, 394 NYS2d 865 [1977]). They thus, by that response, refer to CPL 240.20 and their prior service of "VDFs." In opposition to the motion, they assert they are not responsible for filing a supporting deposition pursuant to CPL 100.25, but make no argument concerning continued prosecution by simplified traffic information on account of the apparent failure of the court clerk to appreciate the existence of the demand for supporting depositions, the ensuing failure of the court to order that the complainant police officer serve and file supporting depositions, and the inevitable failure on the part of the complainant police officer to comply. Insofar as Defendant seeks an order compelling compliance with her request for a bill of particulars, they urge, in effect, that the application should be denied as moot because they have now responded.

In reply, Defendant tacitly objects to the People's response to her request for a bill of particulars. She does so by asserting that she remains in need of responses to each of the items she demanded.

A simplified information is a peculiar form of accusatory instrument that is authorized in limited, statutorily specified cases as an alternative to prosecution by long form information (see CPL 100.10[2][a]; People v. Green, 192 Misc 2d 296, 745 NYS2d 656 [Nassau Dist Ct, 2002]; People v. Quarles, 168 Misc 2d 638, 639 NYS2d 661 [Rochester City Ct, 1996, Byrnes, J.]). Prosecutions by simplified traffic information are governed by somewhat different standards than those applicable to prosecutions by long form information, the most notable being that pleading requirements are far less factually demanding (see People v. Nuccio, 78 NY2d 102, 571 NYS2d 693 [1991]; People v. Baron, 107 Misc 2d 59, 438 NYS2d 425 [App Term, 2d Dept. 1980]; People v. Green, supra; People v. [*4]Quarles, supra). But, where a defendant accused by simplified traffic information elects to be put on notice of more factual detail, he or she, upon timely request, is entitled "as of right" to a supporting deposition, i.e., a verified statement containing factual allegations augmenting the statements of the accusatory instrument and which support or tend to support the charge (cf. CPL 100.20, 100.25). The request for supporting depositions is made, not of the People, but of the court, and, upon a timely request, the court "must" order the complainant police officer to serve the supporting depositions within 30 days of the court's receipt of the request, and to file with the court the supporting depositions and proof of their service (CPL 100.25[2]; People v. Brady, 196 Misc 2d 993, 768 NYS2d 157 [Nassau Dist Ct, 2003]). Failure to timely serve the supporting depositions renders the simplified traffic informations for which they were demanded defective and, indeed, divests the court of jurisdiction to proceed with the prosecution by the simplified accusatory documents (People v. Nuccio, supra; People v. Titus , 178 Misc 2d 687, 682 NYS2d 521 [App Term, 2d Dept. 1998]; People v. Aucello, 146 Misc 2d 417, 558 NYS2d 436 [App Term, 2d Dept. 1990]; People v. Green, supra). And because what is at issue is a defendant's absolute right to timely receive the factual detail provided by timely demanded supporting depositions, court errors in directing that supporting depositions be supplied do not undo that loss of jurisdiction (see People v. Titus, supra; People v. Furst, 1 Misc 3d 654, 765 NYS2d 753 [White Plains City Ct, 2003, Hansbury, J.]; People v. Brady, supra).

It is true that Defendant, apparently ignorant of the requirement that the request for supporting depositions pursuant to CPL 100.25 be made to the court, did nothing to highlight to the clerk, who opened the envelope in which the then-separate request for a bill of particulars and the demand for supporting depositions arrived, that action by the court was required. It is also true that a defendant who even inadvertently engages is misdirection can be estopped from complaining that, e.g., a supporting deposition was improperly served (see People v. Brady, supra; People v. Suarez, 167 Misc 2d 189, 638 NYS2d 1020 [Valley Stream Justice Ct, 1996, Bogle, J.]). But, even though it appears that she sent the documents to the clerk for mere filing, there is no indication that Defendant consciously hid the then-separate demand for supporting depositions behind the request for a bill of particulars to which it is now stapled so as to mislead and deceive the clerk. And since the demand is in writing, since it prominently recites the section of the criminal procedure law pursuant to which it was made, and since it was mailed within 30 days of the date Defendant was first directed to appear in this court, I deem the request for supporting depositions timely and properly made (see CPL 100.25[2]; see People v. Titus, supra; cf. People v. Smith, 195 Misc 2d 41, 757 NYS2d 217 [Webster Justice Ct, 2002, DiSalvo, J.]). The failure to order supporting depositions and the inevitable failure [*5]of the complainant police officer to serve them thus render the six simplified traffic informations for which Defendant requested supporting depositions fatally defective, requiring their dismissal.

The second branch of Defendant's motion is denied as without merit. Apart from the fact that the request for a bill of particulars is otherwise improper (see People v. Davis, supra), and although the request itself concludes otherwise, Defendant in fact seeks what she calls "particulars" only with respect to count two. Because that count is prosecuted by simplified traffic information, which, as noted above, is governed by pleading requirements different from those prosecuted by long form information, Defendant is not entitled to a bill of particulars (cf. CPL 100.45[4]).

So Ordered.