People v Horner

[*1] People v Horner 2010 NY Slip Op 52323(U) [30 Misc 3d 1207(A)] Decided on July 2, 2010 City Court Of Poughkeepsie Garrity, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2010
City Court of Poughkeepsie

The People of the State of New York, Plaintiff,

against

Terry Horner, Defendant.



923621



Terry D. Horner, Esq.

Defendant, pro se

81 South Hamilton Street

Poughkeepsie, NY 12601

Paul Ackermann, Asst. Corp. Counsel

Corporation Counsel

62 Civic Center Plaza

Poughkeepsie, NY 12601

John B. Garrity, J.

Defendant was charged with various parking offenses in violation of the City of Poughkeepsie Code. On December 29, 2009, defendant filed a motion seeking to dismiss the above captioned tickets pursuant to C.P.L. § 170.30(1)(a). The motion is supported by the affirmation of Terry D. Horner, dated December 23, 2009, a memorandum of law dated December 23, 2009 together with several exhibits. On January 13, 2010, the People filed opposition to the defendant's motion, supported by the affirmation of Paul Ackermann, Assistant Corporation Counsel, dated January 11, 2010. On February 2, 2010, the defendant filed the reply affirmation of Terry Horner, Esq., dated February 1, 2010. The Court having now duly deliberated upon said motion, the opposition, and defendant's reply finds and determines the motion as follows:

FACTS & ARGUMENTS:

On August 6, 2009, defendant was charged with an overtime parking offense in violation of City Code § 13-62, representing ticket number 923621. On September 22, 2009 defendant was charged with another overtime parking offense in violation of City Code § 13-62, representing ticket number A010000596. On December 2, 2009, defendant was charged on with alternate side parking offense in violation of City Code § 13-117, representing ticket number A020001696. Defendant pled not guilty to all three offenses and the police served a supporting deposition in connection with each offense. A trial date was scheduled for January 4, 2010 for all three matters. Prior to the trial, the defendant filed the instant motion.

Defendant's motion seeks to have each of the matters dismissed. In particular, the defendant argues that this Court has not acquired subject matter jurisdiction over any of the offenses because none of the parking summonses were succeeded by a legally sufficient complaint or information. Defendant cites C.P.L. § 150.50, People v. Horner, 176 Misc 2d 93 and People v. Cooperman, N.Y.L.J., Jan. 17, 1989, p.26, col. 4 (App. Term 9th & 10th Districts) in support of his contention. Defendant argues that service of a supporting deposition on these matters does not convert an appearance ticket into an accusatory instrument the way that it converts a valid complaint into an information. Defendant further argues that a parking ticket must be succeeded by a long form accusatory instruments because parking offenses may never be prosecuted by simplified information, citing V.T.L. § 207(1); 15 N.Y.C.R.R. § 91.3(a) and § 91.4(b). Finally, defendant argues that even if this Court deems the form filed to be a long form [*2]information, the tickets are still fatally defective because it illegally solicits a plea by mail, and a plea to an accusatory instrument must be in person or by counsel (citing C.P.L. § 340.20(2)(a) and V.T.L. § 1805).

Defendant also argues that the information on ticket numbers 923621 and A020001696 are deficient because the tickets fail to allege the situs of the offense, i.e., "opposite 332 Main St" whereas the Code requires that the offense occur between Market and Clinton ( Code § 13-191.4) and "in front of Hamilton" whereas the Code requires that the offense occur between Montgomery and Livingston (Code § 13-195). With respect to ticket number A010000596, the defendant argues that the summons identifies the date of the offense as 9/22/09 whereas the supporting deposition states August 6, 2009 at 9:57 A.M., making the summons defective and subject to dismissal.

In opposition to the defendant's motion, the People argue that documents filed with the court are accusatory instruments, not appearance tickets as the defendant suggests. The People further argue that while a parking violation does not necessitate the filing of a supporting deposition, the People did so as a prophylactic against any claims by the defendant alleging there to be cryptic language in the accusatory instrument. The People cite People v. Wienclaw, 183, Misc 2d 727 (2000) and People v. Gabbay, 175 Misc 2d 421 (2d Dept. 1997) in support of their contention that the documents filed with this Court charging the defendant are valid accusatory instruments and that upon their filing with this Court jurisdiction was conferred over the defendant. The People highlight C.P.L. §§ 100.15, 100.30 and 100.40 in arguing that each accusatory instrument contains non-hearsay factual allegations to establish a prima facie case and also highlight that each accusatory instrument is signed and verified by the officer who had direct knowledge of the offenses committed. The People also cite, Vehicle and Traffic Law § 1805 and §1806 which permit pleas to be entered by mail. Finally, the People argue that any defects in setting forth the location of the offense can be corrected by amendment.

Defendant's reply seeks to counter the applicability and conformity of the ticket with V.T.L. § 1805 and 1806 as well as the adequacy describing the situs of the offenses. Defendant's reply papers also inject newly raised arguments never broached in his original motion.

LEGAL ANALYSIS AND CONCLUSION:

A. Subject matter jurisdiction over the defendant:

The accusatory instruments filed by the People convey subject matter jurisdiction over this defendant for each of the tickets.

It is well settled that an appearance ticket is not an accusatory instrument and its filing does not confer jurisdiction over the defendant. People v. Horner, 176 Misc 2d 93(App. Term 1998) citing People v. Cooperman, N.Y.L.J., Jan. 17, 1989, at 26, col 4 (App. Term, 9th & 10th Jud. Dists.); People v. Gregory, N.Y.L.J., Dec. 5, 1991, at 30, col 2 (App. Term, 9th & 10th Jud. [*3]Dists). Rather, parking summonses must be succeeded by a legally sufficient accusatory instrument. People v. Cooperman, N.Y.L.J., Jan. 17, 1989, at 26, col 4 (App. Term, 9th & 10th Jud. Dists.). Indeed, failure to file an accusatory instrument for a parking violation will result in dismissal of the offense. People v. Wienclaw, 183 Misc 2d 727 (Village Ct. 2000) citing People v. Gilberg, 166 Misc 2d 772 (App Term, 2d Dept. 1995). This is because "an appearance ticket is a mere invitation to go to court and does not provide the court with jurisdiction." Weinclaw, supra, citing People v. Ashkinadze, 167 Misc 2d 80 (Crim. Ct. 1995). However, here facially sufficient accusatory instruments were filed in each instance.

An appearance ticket is defined as "a written notice issued by a public servant, more fully defined in section 150.10, requiring a person to appear before a local criminal court in connection with an accusatory instrument to be filed against him therein." C.P.L. § 1.20.

An accusatory instrument is defined as "an indictment, an indictment ordered reduced pursuant to subdivision one-a of section 210.20 of this chapter, an information, a simplified information, a prosecutor's information, a superior court information, a misdemeanor complaint or a felony complaint. Every accusatory instrument, regardless of the person designated therein as accuser, constitutes an accusation on behalf of the state as plaintiff and must be entitled, "the people of the state of New York" against a designated person, known as the defendant." C.P.L. § 1.20(1).

An information means, "a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, none of which is a felony, and which may serve both to commence a criminal action and as a basis for prosecution thereof." C.P.L. § 1.20(4).

In order to assess the validity of an information and whether it is a legally sufficient accusatory instrument the Court is governed by Article 100 and 170 of the C.P.L in its determination. Wienclaw, supra at 730; People v. Weinberg, 146 Misc 2d 441 (App. Term 2d Dept. 1990). More specifically,

an infraction must conform with the requirements of C.P.L. 100.15, to wit:

the complainant must subscribe and verify his signature, based upon personal

knowledge or upon information and belief. The accusatory part must designate

the offenses and the factual part must allege facts of an evidentiary nature

[C.P.L. § 100.15(1), (2), (3); People v. Dumas, 68 NY2d 729 (1986)].

As a secondary and equally important requirement, the information must

contain allegations of fact that provide reasonable cause to believe the

defendant committed the offense charged and that the charges are

supported by nonhearsay allegations that establish each element.

[C.P.L. § 100.40(1)(b), (c); People v. Hall, 48 NY2d 927(1979);

People v. Cea, 141 Misc 2d 234 (Crim. Ct. 1988)]. The burden of proof [*4]

need only be a prima facie case and need not be beyond a reasonable

doubt' [People v. Henderson, 92 N.Y2d 677 (1999)]. Failure to comply

with any of the above requirements is considered a jurisdictional defect,

and therefore the information should be dismissed as defective on

its face. People v. Alejandro, 70 NY2d 133 (1987).

Wienclaw, supra at 730.

In order to be facially sufficient an accusatory instrument need only establish a prima facie case and it need not establish guilt beyond a reasonable doubt. People v. Henderson, 92 NY2d 677 (1999); People v. Moncayo, N.Y.L.J., April 10, 1997, at 29, Col 4 [App Term, 2d & 11th Jud. Distr.]. The prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, supra at 680. Review of the accusatory instruments here reveals that each meets the requirements of Article 100 and 170 of the C.P.L.. Sufficient factual allegations are set forth in the accusatory instruments and each is signed and properly verified by the complainant officer. People v. Gabbay, 175 Misc 2d 421, 422 (App. Term 2d Dept. 1997). Each is made upon direct knowledge and personal observations, and thus contains sufficient non-hearsay factual allegations necessary to establish a prima facie case.

Moreover, the accusatory instruments sufficiently identify the location of each of the offenses to provide notice of the charges and situs of the offense ensuring the defendant adequate opportunity to mount a defense. Despite the defendant's contention that the People have conceded the defendant's argument that the situs is insufficient, this Court finds otherwise. The People specifically averred that the informations sufficiently identify the location of the offenses. See Ackermann affirmation, dated January 11, 2010, ¶ 18-19. Again, the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, supra at 680.

Additionally, V.T.L. § 238 sets forth the due process and jurisdictional requirements for initiating a prosecution for parking violations. People v. Pilewski, 173 Misc 2d 800, 802 (Justice Ct. 1997). In short, there are five mandatory identification elements which may not be omitted from a parking summons if it is to survive a jurisdictional challenge and avoid dismissal. Pilewski, supra at 802; Matter of Wheels, Inc. v. Parking Violations Bur. 80 NY2d 1014(1992); Matter of Ryder Truck Rental v. Parking Violations Bur, 62 NY2d 667 (1984). The mandatory five elements are 1) plate designation 2) plate type 3) expiration date of registration; 4) make or model of vehicle and 5) body type of vehicle. Matter of Ryder Truck Rental, supra at 668. All of the mandatory five elements are satisfied in each of the accusatory instruments with which the defendant has been charged - and where no allegation of a wrong description has been lodged.

As such, this Court finds that the accusatory instruments filed by the People convey subject matter jurisdiction over this defendant for each of the tickets and that each of the tickets sets forth facially sufficient nonhearsay factual allegations setting forth a prima facie case to [*5]defeat defendant's motion to dismiss.

B.Plea by mail

Defendant argues that even if this Court finds that the form filed by the People suffices as a long form information, the tickets are still fatally defective because it illegally solicits a plea by mail, and a plea to an information must be in person or by counsel (citing C.P.L. § 340.20(2)(a) and V.T.L. § 1805). Defendant is wrong.

C.P.L. § 340.20(2)(b) specifically makes an exception to a plea in person when the offense(s) charged involve traffic infractions and the statute provides that such pleas shall be entered in accordance with V.T.L. §§ 1805, 1806, 1807. C.P.L. § 340.20(2)(b). A violation of a parking ordinance is a traffic infraction which "is not a crime and the punishment imposed therefor shall not be deemed for any purpose a penal or criminal punishment." V.T.L. § 155; People v. Pilewski, 173 Misc 2d 800, 804 (Justice Ct. 1997). Vehicle and Traffic Law § 1805 and § 1806 set forth the manner of entry of a plea by mail for traffic (and parking) offenses. Entry of a plea to each of these parking offenses is clearly governed by V.T.L. §§ 1805, 1806, 1807 and the tickets are not fatally defective by allowing a defendant to enter his plea by mail.

Finally, the defendant argues that the pre-determined fines marked on the ticket invalidate the accusatory instrument filed by the People, thus requiring dismissal. Defendant raises this issue for the first time in his reply affirmation thereby going beyond the scope of the legal arguments set forth in his original motion. In so doing, defendant effectively carves out the People's right and opportunity to rebut the arguments newly raised.

The law provides that a "defendant who is in a position adequately to raise more than one ground in support thereof should raise every such ground upon which he intends to challenge the accusatory instrument. A subsequent motion based upon such a ground not so raised may be summarily denied, although the court, in the interests of justice and for good cause shown, may in its discretion entertain and dispose of such motion on the merits notwithstanding." C.P.L. § 170.30(3); C.P.L. § 170.45

As such, defendant's motion seeking dismissal on the grounds that the pre-determined fine invalidates the accusatory instrument is summarily denied. Defendant was in a position to adequately raise this argument in the first instance but strategically elected not to do so.

C.People's right to amend:

The People are entitled to amend the accusatory part of such information as long as it is supported by the allegations of the factual part of the information and/or any supporting deposition that accompany it. C.P.L. § 100.45; People v. Spiegelman, 142 Misc 2d 617 (Justice Court 1989).

D.Selective prosecution:

While the defendant asserts that he has been aggrieved by the unconstitutional enforcement of the statute, the defendant has failed to sufficiently demonstrate that a pattern of discrimination has been consciously practiced, rather he merely states that the People have failed to file opposition papers in connection with prior motions to dismiss, but this is insufficient to sustain a constitutional violation. Yick Wo v. Hopkins, 118 U.S. 356 (1886); People v. Friedman, 302 NY 75, 81 (1950).

Moreover, the defendant's reply affirmation once again goes beyond those points raised in defendant's original motion, leaving the People in the unfair position, unable to counter points newly raised by defendant in his reply.

This tactic is reminiscent of the one also raised by defendant in his reply regarding the form of the ticket, where defendant strategically raises new legal arguments never raised in the first instance, circumventing the People's opportunity to counter such arguments. Again, since the defendant was in a position to adequately to raise this ground in its initial motion, but failed to do so, the motion is summarily denied.

THEREFORE, based upon all of the foregoing, it is now

ORDERED, that the defendant's motion to dismiss is DENIED in its entirety.

SO ORDERED.

All parties are directed to appear before this Court on July ___, 2010 at ___:____ A.M./P.M. for trial on each of the above-captioned matters.

Dated: Poughkeepsie, New York

June ____, 2010___________________________

John B. Garrity

CITY COURT JUDGE

TO:

[*6]ENTERED this ___ day of June 2010_______________________________

JEAN JICHA, CHIEF CLERK