People v Benjamin

[*1] People v Benjamin 2010 NY Slip Op 51627(U) [28 Misc 3d 1237(A)] Decided on September 20, 2010 Mount Vernon City Ct Seiden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2010
Mount Vernon City Ct

The People of the State of New York,

against

Marvin Benjamin, Defendants.



08-1823



Westchester County District Attorney

Mount Vernon branch

Alexander Ayoub, Esq.

Attorney for Defendant

50 Main Street, Suite 1000

White Plains, New York 10606

Adam Seiden, J.

The defendant, charged by simplified traffic informations with aggravated unlicensed operation in the third degree (VTL 511(1)(A)), and uninsured vehicle (VTL 319(1), moves to dismiss the VTL 511(1)(a) simplified information as facially insufficient.

The People have filed no papers in opposition to the motion.

On this motion, the defendant argues that the simplified information is insufficient in that the date of the offense listed on the ticket is wrong. The date of the offense is stated as April 4, 2007 on the simplified information, however, upon information and belief, the actual date of the incident was April 4, 2008. The 2007 is pre-printed on the ticket and the officer failed to change it to reflect 2008. In addition to the wrong date of the offense, the issuing officer also affirms the simplified information on a date that precedes the offense itself. The date of the affirmation is April 3, 2008. Defendant argues that if the Court agrees that the actual date of the offense is April 4, 2008, then it must also agree that it is impossible to affirm a statement alleging an incident before the date occurred. Defendant argues that since the information is fraught with error, it prejudices the defendant from defending himself from the allegation put forth by said information. Accordingly, the defendant moves to dismiss the charge of aggravated unlicensed operation in the third degree.

The sufficiency of the information must be determined by a reading of the face of the instrument itself, together with any supporting depositions accompanying it (People v Casey, 95 NY2d 354, 361 (2000); People v Grabinski, 189 Misc 2d 307 (App. Term, 2d Dept 2001)). To be sufficient on its face, an information must contain nonhearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof ( P.L. 100.40(c); People v Alejandro, 70 NY2d 133 (1987)).

Based upon the foregoing and the People's lack of opposition, the motion is granted. Insofar as the simplified traffic information is inconsistent with respect to the date the alleged offense occurred, the People were required to move to amend as to that defect or irregularity (People v Greco, 12 Misc 3d 83 (2d Dept 2006); CPL §§ [*2]170.30(1)(a); 170.35(1)(a)). Accordingly, since the People never moved to correct the irregularity, the simplified instrument must be dismissed (Id.).

This constitutes the Decision and Order of this Court.

Dated:September 20, 2010

Mount Vernon, New York

_____________________________________

HON.ADAM SEIDEN

Associate City Judge of Mount Vernon

Westchester County District Attorney

Mount Vernon branch

Alexander Ayoub, Esq.

Attorney for Defendant

50 Main Street, Suite 1000

White Plains, New York 10606