People v Gomez

[*1] People v Gomez 2009 NY Slip Op 52422(U) [25 Misc 3d 1235(A)] Decided on November 6, 2009 District Court Of Nassau County, First District 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2009
District Court of Nassau County, First District

The People of the State of New York, Plaintiff,

against

Minor E. Gomez, Defendant.



NA 12743/99



APPEARANCES:Honorable Kathleen Rice, District Attorney

240 Old Country Road

Mineola, NY 11501

Sharifov & Russell, LLP

50 Main Street

Hempstead, NY 11550

Susan T. Kluewer, J.

Defendant's motion for an order dismissing the accusatory instrument as defective is denied.

Defendant is accused by three simplified traffic informations filed under this docket of aggravated unlicensed operation of a motor vehicle in the third degree, operating an uninsured motor vehicle, and operating an unregistered motor vehicle. All three simplified informations have printed on them, at the top, "UT 3-3(7/96)," indicating each is a "uniform ticket" in a form created in July, 1996. All three charges stem from an incident that is alleged to have occurred on May 5, 1999. Defendant was directed to appear to respond to the simplified informations on June 21, 1999. He did not do so, and the court (Reilly, J.) issued an arrest warrant (but see CPL 120.20[1]) and a "scoff." Sometime thereafter, the court file, consisting of the simplified traffic informations and a copy of the original court file jacket, was archived onto microfilm and, it appears, the original documents were destroyed. On April 28, 2009, almost 10 years after he was required to have appeared, Defendant presented himself in Arraignment B, at which time the court (Delligati, J.) vacated the warrant and scoff, arraigned Defendant, released him on his own recognizance, and placed the matter in Part 3 for further proceedings. By written document delivered to the clerk on May 6, 2009, Defendant, through counsel, demanded a supporting deposition as to each of the three simplified traffic informations. Although notation of receipt of the demand is noted on the new court file jacket, there is no indication that the court actually ordered that the issuing officer serve and file a supporting deposition. It is not disputed that no such service and filing have been effectuated. In accordance with the usual practice (cf. 22 NYCRR 91.7 and 91.18), no appearance ticket (see CPL 150 et seq.) has ever been part of the court file.

Defendant now seeks dismissal of each of the simplified traffic informations as facially defective. In addition to setting forth that no supporting depositions have been served, and in anticipation of the People's argument that he has waived his right to supporting depositions by failing to timely demand them, he asserts, through counsel and "[u]pon information and belief" — the source of which he does not set forth — that none of the three simplified traffic informations "contained the form statement set forth in CPL 100.25(4) advising [him] of his absolute right to have a supporting deposition served upon him," that, therefore, the time to demand supporting depositions did not begin to run until he first appeared in court, and that, therefore, his demand for supporting depositions is timely. He further asserts, without citation to authority, that it is the People's burden to demonstrate that the appearance tickets issued to him in conjunction with the simplified informations contain the statutorily required notice of entitlement to a supporting deposition upon timely demand therefor. He also urges that even if the People prove that the appearance ticket issued to him contained the required notice, the waiver of the right to request and receive a [*2]supporting deposition that is statutorily imputed to him "could not possibly have been voluntary since he had not appeared in court to learn the indispensable role it would serve in preparing a defense." He thus concludes that since, according to him, his demand is timely, and since no supporting depositions have been served, each simplified traffic information must be dismissed as facially defective.The People in opposition urge that to accept Defendant's arguments is to sidestep the purpose behind the 1996 amendments to CPL 100.25 that were enacted to prevent scofflaw defendants from "unjustly benefitting from their own recalcitrance." They also urge that Defendant's argument is premised on the "incredible" assumption that he alone of all recipients of tickets issued in a form approved by the Commissioner of Motor Vehicles pursuant to 15 NYCRR 91.5 was in receipt of a defective ticket. They do concede that, in spite of their efforts, they cannot provide a blank sample of the form because "UT-3.3(7/96)" has not been in use for "an indeterminate number of years," and the Nassau County Police Department "as the issuing agency does not archive samples of defunct forms."

Defendant in reply asserts for the first time that prosecution by microfilm copy of a simplified traffic information is improper, suggests that it was unlawful to have disposed of the original simplified informations, and urges that these facts alone warrant granting his motion. He also theorizes that if "UT-3.3(7/96) is no longer in use, it must be because it was defective."

A simplified traffic information is a peculiar form of accusatory instrument — an unverified one (see CPL 100.30[1][d]; cf. 15 NYCRR 91.18) — 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. Quarles, supra ). The requirements for facial sufficiency of a simplified traffic information thus are merely that the accusatory instrument be in brief, simplified form in accordance with the directives of the commissioner of motor vehicles (see CPL 100.10[2][a], 100.40[2]). 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 [*3]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 that complainant police officer 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, although the People are free to commence a separate action by filing a long form information (see People v. Nuccio, supra ), the court is divested 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 ). 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 ).

Before 1996, a request for a supporting deposition was timely if made within a specified period, generally 30 days, measured from the date a defendant first appears in court for arraignment (cf. L1996 c.67 § 2; see Preiser, Practice Commentaries to CPL 100.25). In order to foreclose claims of ignorance regarding the time limit, and to prevent the anomaly of affording more time to request a supporting deposition to those who scoff at the law than to those who abide by it and appear in court as required, the legislature amended CPL 100.25, effective October 20, 1996 (L.1996 c.67 §§ 2,3) so as to require that certain language be included in any appearance ticket issued in conjunction with a simplified information and to provide that, so long as the required language is included in the appearance ticket, the time to request a supporting deposition runs from the date a person is first directed to appear in court, regardless of when he or she actually does so. Failure to include such language in an appearance ticket works to extend the time to make the request until the defendant actually appears, thus also extending the possibility that a simplified traffic information will be rendered defective on account of a failure to serve and file a supporting deposition (see CPL 100.25[2]).

Turning first to Defendant's secondary arguments, his claim, made only in reply, that the prosecution cannot proceed because the original simplified traffic informations have been destroyed is without merit. Defendant comes forward with nothing to rebut the presumption (see e.g. People v. Andrew, 1 NY3d 546, 772 NYS2d 235 [2003]; People v. Lopez, 97 AD2d 5, 468 NYS2d 479 [1st Dept. 1983]) that the original simplified traffic informations, and the clerks notations [*4]made on the original court file itself, were copied onto microfilm and then destroyed in accordance with the Rules of the Chief Administrator (see 22 NYCRR Part 104). Moreover, Defendant cites no authority for this apparently throw-away argument, and, except to complain about the quality of the copy of one of the simplified traffic informations as reproduced from microfilm — a complaint easily addressed by production of another copy — neither does he come forward with even a suggestion that he is prejudiced by prosecution by a copy of the original document. Insofar as Defendant claims that statutory imputation to him of a waiver of his right to request a supporting deposition on account of his failure to appear is improper, that argument is premised on non-binding authority which, by dicta, approves the notion that a defendant accused by simplified information cannot commit any act regarding a supporting deposition until the court acquires personal jurisdiction over him or her at arraignment (see e.g., People v. Schnerber, 21 Misc 3d 251, 863 NYS2d 352 [Just Ct, Village of Muttontown, 2008 [Kaminsky, J.]). I respectfully decline to follow such authority, which, in my view, sidesteps the Court of Appeals ruling which confirms that, because of the 1996 amendments to CPL 100.25(2), a defendant may take steps before arraignment— and, inferentially, decline to take steps — that have procedural effects on the prosecution of the case (see People v. Tyler,1 NY3d 493, 776 NYS2d 199 [2004]). Indeed, Defendant's argument that the waiver of his right to request a supporting deposition that arises from his failure to appear as directed cannot be considered "voluntary" because that same failure to appear also prevented him from being advised of the importance of a supporting deposition is an argument premised on what is commonly referred to as "chutzpah."

Defendant's primary argument — that because no one else can now come forward with proof that the appearance ticket handed to him personally (see CPL 140.10, 150.20[1]) contained the notice required by CPL 100.25(4) and 150.10(2), he should be given more time to demand a supporting deposition — is similarly brazen. Generally, it is the moving party's burden to establish entitlement to the relief requested, and even in the context of criminal cases, that burden often falls to the defendant (see e.g. People v. Smocum, 99 NY2d 418, 757 NYS2d 239 [2003]; People v. Millan, 118 AD2d 236, 505 NYS2d 84 [1st Dept. 1986]; People v. Trasso, 110 Misc 2d 438, 440 NYS2d 504 [Crim Ct, New York County, 1981, Uviller, J.]; see also People v. Daniels, 217 AD2d 448, 630 NYS2d 5 [1st Dept. 1995]). I see no reason to depart from that general rule here. On this motion, Defendant, who does not bother to explain why he does not now have the appearance ticket that would have been dispositive of his claim, comes forward with nothing more than a without-source-upon-information-and-belief-through-counsel-only assertion that [*5]the appearance ticket he received did not contain the requisite notice. I conclude that this tepid allegation is inadequate to establish that the issuing police officer handed Defendant a defective appearance ticket. Because Defendant's demand for supporting depositions is therefore untimely, the simplified traffic informations have not been rendered defective on account of a failure to serve supporting depositions. Defendant's motion is accordingly denied.

So Ordered.