People v Kelsey

[*1] People v Kelsey 2020 NY Slip Op 50719(U) Decided on May 15, 2020 City Court Of Poughkeepsie, Dutchess County Mora, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 15, 2020
City Court of Poughkeepsie, Dutchess County

The People of the State of New York, Plaintiff,

against

John M. Kelsey, Defendant.



RG16B3R0PZ



John M. Kelsey

Defendant, pro se

[redacted]

Poughkeepsie, NY 12601

Nicholas J. Gildard, Esq., Assistant Corp. Counsel

Corporation Counsel's Office

City of Poughkeepsie

62 Civic Center Plaza

Poughkeepsie, NY 12601
Frank M. Mora, J.

Defendant is charged by simplified traffic information with disobeying a traffic control device in violation of V.T.L. § 1110(A). At the first appearance, on January 2, 2020, defendant filed a motion seeking to dismiss the ticket on the grounds that the officer failed to timely provide a supporting deposition despite defendant's timely request for one. The motion is supported by a signed but unsworn statement of the defendant, dated January 2, 2020, and a copy of the ticket issued to the defendant. The People have opposed the motion supported by the affirmation of Nicholas J. Gildard, Esq., Assistant Corporation Counsel, dated January 14, 2020. The defendant has filed a reply in further support of his motion and in reply to the People's opposition, supported by the signed but unsworn statement of the defendant, dated January 21, 2020. Having reviewed the motion, the opposition, the reply, and all of the papers and proceedings held hereinbefore, and having duly deliberated on said motion, the Court determines the matter as follows:

FACTS

Defendant was issued a uniform traffic ticket ("UTT") for disobeying a traffic control device on October 18, 2019, at 7:40 P.M., on Smith Street at North Clinton Street in the City of [*2]Poughkeepsie, New York. The UTT directed the defendant to "RETURN BY MAIL BEFORE OR IN PERSON ON: 11/1/2019 at 9:00 A.M." On October 22, 2019, the People filed with Poughkeepsie City Court a simplified traffic information charging the defendant with the underlying UTT charge. Defendant failed to appear in person on November 1, 2019. In the defendant's unsworn statement, he states that he requested a supporting deposition on November 1, 2019. On November 7, 2019, the Court received defendant's UTT via mail with his plea of not guilty to Poughkeepsie City Court, and the box requesting a supporting deposition was checked. On November 21, 2019, the Court sent out a letter to the police officer directing him [pursuant to C.P.L. § 100.25(2)], "to serve a copy of a supporting deposition upon the defendant within 30 days of the date of the request received by the court, or at least five days before trial, whichever is earlier, and to file the supporting deposition(s) with the Court together with proof of service thereof (no later than December 21, 2019)." The officer did not file a supporting deposition with proof of service by December 21, 2019. The matter was scheduled by the Court for January 2, 2020, for all parties to personally appear, at which time the defendant appeared and filed the instant motion to dismiss for failure to timely file a supporting deposition. On January 15, 2020, the People filed opposition to the motion. Relying upon People v. Ney, 191 Misc 2d 185 (Ithaca City Court 2002), the People argue that since the defendant plead not guilty by mail to a traffic infraction, V.T.L. §1806 governs and requires the defendant to mail his plea within forty-eight (48) hours after receiving the ticket by registered or certified mail, return receipt requested, or by first class mail. Since the defendant's not guilty plea (and request for a supporting deposition) was mailed outside the forty-eight (48) hour period (received by the Court on November 7, 2019), the People argue the Court did not acquire jurisdiction over the defendant until his actual appearance on January 2, 2020. As such, the People argue that defendant must be arraigned in person on that date, and to treat defendant's request for a supporting deposition filed on November 7, 2019, as a nullity.[FN1] The People contend that the clock on the thirty (30) day compliance period for the officer to file the supporting deposition did not commence until the first appearance date/arraignment (of January 2, 2020), and the motion to dismiss should be denied, for the thirty (30) day period to file the supporting deposition had not lapsed as of the date of the People's opposition papers which were filed on January 15, 2020.

The People did not address the fact that the officer ultimately filed his supporting deposition with proof of service on February 24, 2020 - more than thirty (30) days after the initial appearance date on January 2nd - because the People could not predict the officer would file his supporting deposition almost forty-five (45) days after the People filed their opposition papers. The officer's supporting deposition reiterates the same facts set forth in the UTT initially served upon the defendant, with the additional fact that the charges were based upon: "DIRECT OBSERVATION."

LEGAL ANALYSIS AND CONCLUSION

Criminal Procedure Law § 100.25(2) provides that, "[a] defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him or his attorney, a supporting deposition of the complainant police [*3]officer or public officer. An information is insufficient upon its face when the police officer fails to comply with an order by the "court to serve a copy of the supporting deposition upon the defendant or his attorney within thirty days of the date such request is received by the court, or at least five days before trial, whichever is earlier." C.P.L. § 100.40(2) and § 100.25 (2). Failure of the officer to comply with the order to serve a timely supporting deposition shall be sufficient grounds to dismiss a simplified traffic information. People v. Tyler, 1 NY3d 943 (2004). Here, the officer did not file the supporting deposition within thirty (30) days of the order sent by the Court on November 21, 2019, nor was it filed within thirty (30) days of the defendant's arraignment on January 2, 2020.

The People, relying upon People v. Ney, supra and having anticipated the officer would timely file his supporting deposition, have asked this Court to adopt the finding of the Ithaca City Court and hold that since the defendant did not mail in his not guilty plea (and request for a supporting deposition) within 48 hours, his opportunity to be arraigned on the simplified traffic information without personally appearing was lost. In forgoing his opportunity for an arraignment without personally appearing, the Court did not have jurisdiction over the defendant at the time the defendant's request for a supporting deposition was filed, and must treat the request as a nullity now. This Court finds otherwise.

The general rule of law is that a defendant must personally appear in court for arraignment, [C.P.L. § 170.10(1)(a), (b)]—with two exceptions, one of which includes cases where a defendant, like the one here, is charged with a traffic infraction. V.T.L. 1806.[FN2] If a 'not guilty plea' by mail to a traffic infraction is sent in an untimely manner, or not in accordance with V.T.L. §1806, then the plea cannot be accepted by the Court, and the defendant must then appear in person for arraignment upon the simplified traffic information. V.T.L. § 1806; People v. Ney, supra at 189. The People properly argue that V.T.L. § 1806 provides the mechanism for the waiver of an in-person arraignment and not guilty plea to be valid, and defendant failed to avail himself of this by mailing the plea more than forty-eight (48) hours after receiving the ticket. As such, he was required to appear in person in order for this Court to exercise jurisdiction over the defendant, and he did appear on January 2, 2020. While this Court agrees with the People that personal jurisdiction was not obtained over the defendant until he personally appeared, this Court rejects the finding of the Ithaca City Court in People v. Ney, supra that the People urge this Court to adopt, and which effectively held that defendant's request for a supporting deposition should be treated as a nullity if it is made after the forty-eight hour period has past (as set forth by V.T.L. § 1806), but made within the thirty (30) days set forth in C.P.L. § 100.25. The Ney Court reasoned that it did not have jurisdiction over the matter nor could it acquire and exercise control [*4]over the defendant with respect to the accusatory instrument and setting the course of further proceedings in the action until the defendant personally appeared before it. People v. Ney, supra at 191 citing People v. Perry, 87 NY2d 353, 355-56 (1996).

Rather, this Court finds that if it were to treat defendant's request for a supporting deposition as a nullity (because it was mailed after 48 hours from receiving the ticket, but prior to 30 days expiring from the date the defendant is directed to appear in court on the appearance ticket) prior to an in-person arraignment, it would gut the rights bestowed upon a defendant in the 1996 amendments made to C.P.L. § 100.25 giving the defendant time to request the supporting deposition independent of the arraignment: ". . . thirty (30) days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto. If the defendant's request is mailed to the court, the request must be mailed within such thirty day period." C.P.L. §100.25 (2); see also, People v. Scherbner, 21 Misc 3d 251 (Nassau County 2008)[the fact that a pre-arraignment request for a supporting deposition is now a valid request (with the adoption of the 1996 amendment to C.P.L. § 100.25) does not necessarily mean that the failure to make such a request before the court obtains jurisdiction over the defendant should become a waiver of one's right to a supporting deposition].

In other words, if this Court were to treat the request for a supporting deposition as a nullity prior to an in-person arraignment, as the Court did in People v. Ney, it would preclude a defendant from ever being able to ask for one, especially when the in-person arraignment for this case was scheduled more than thirty (30) days after the date set forth on the appearance ticket. Indeed, appearance dates for traffic infractions are often set well into the future, and many times are adjourned for a variety of reasons. Moreover, when statutes can be read as consistent with each other, the Court must read them consistently together to ensure that the statutes both have their own effect.

Instead, this Court adopts the holding in People v. Guerrerio, 181 Misc 2d 517 (Nassau 1999) which found that since the adoption of the 1996 amendment to C.P.L. § 100.25 [FN3] , the [*5]defendant's right to a supporting deposition reigns independent of the arraignment, and that the Court can enforce the right of the defendant to obtain his supporting deposition even if the defendant has not been properly arraigned. People v. Guerrerio, supra. In short, the defendant does not waive his right to request a supporting deposition pursuant to C.P.L. § 100.25 within thirty (30) days just because defendant misses his forty-eight (48) hour window to not personally appear in court for arraignment and enter a plea pursuant to V.T.L. § 1806. Indeed, to do so would effectively shorten defendant's right to request his supporting deposition in all scenarios to forty-eight (48) hours from the date of the ticket instead of thirty (30) days from the date defendant is to appear on the ticket, unless he personally appears on the return date.[FN4]

A simplified information is insufficient on its face when the filing of a supporting deposition "is ordered by the court" and the complainant police officer or public servant fails to comply with such order within the time provided pursuant to C.P.L. § 100.25(2) [People v. [*6]Ortreger (Joseph), 56 Misc 3d 140(A)(App. Term, 2d Dept. 2017)]. Here, the defendant's request for a supporting deposition was timely made. The Court issued an order to the officer on November 21, 2019. The officer failed to file the supporting deposition within (30) days of the Court's order directing the officer to file a supporting deposition, and the matter is subject to dismissal. Moreover, even if the Court calculated the time period from defendant's initial appearance on January 2, 2020, as the People contend it should (but this Court now rejects), the officer still failed to timely file the supporting deposition.

Based upon the foregoing, this Court does not reach the issue of the sufficiency of the facts set forth in the supporting deposition.

THEREFORE, based upon the foregoing, it is NOW,

ORDERED, that the defendant's motion to dismiss is GRANTED.

SO ORDERED.

Dated: May 15, 2020

Poughkeepsie, New York

FRANK M. MORA

CITY COURT JUDGE Footnotes

Footnote 1:The People's affirmation mistakenly avers that the initial appearance date was January 4, 2020. Gildard affirmation, dated January 14, 2020, ¶5.

Footnote 2:V.T.L. § 1806 provides in relevant part, "a defendant may enter a plea of not guilty by mailing [to a traffic infraction] to the court of the appropriate jurisdiction the ticket making the charge and a signed statement indicating such plea. Such plea must be sent: (a) by registered or certified mail, return receipt requested or by first class mail; and (b) within forty-eight hours after receiving such ticket. Upon receipt of such ticket and statement, the court shall advise the violator of an appearance date by first class mail but no warrant of arrest for failure to appear can be issued until the violator is notified of a new court appearance date by registered or certified mail, return receipt requested, and fails to appear.

Footnote 3:The language of C.P.L. § 100.25 PRIOR to the 1996 amendment read, in relevant part, as follows: "2. A defendant arraigned upon a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged. Such a request must be made before entry of a plea of guilty to the charged specified and before commencement of a trial thereon, but not later than thirty days after (a) entry of the defendant's plea of not guilty when he has been arraigned in person, or (b) written notice to the defendant of his right to receive a supporting deposition when he has submitted a plea of not guilty by mail. Upon such request, the court must order the complainant police officer or public servant to serve a copy of such supporting deposition upon the defendant or his attorney, within thirty days of the date of such request is received by the court, or at least five days before trial, whichever is earlier, and to file such supporting deposition with the court together with proof of service thereof." C.P.L. 100.25 (2) (prior to the 1996 amendment). The language of C.P.L. § 100.25 AFTER the 1996 amendment reads, in relevant part, as follows: "2. A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged. To be timely, such a request must, except as otherwise provided herein and in subdivision three of this section, be made before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto. If the defendant's request is mailed to the court, the request must be mailed within such thirty day period. Upon such a request, the court must order the complainant police officer or public servant to serve a copy of such supporting deposition upon the defendant or his attorney, within thirty days of the date such request is received by the court, or at least five days before trial, whichever is earlier, and to file such supporting deposition with the court together with proof of service thereof." C.P.L. § 100.25 (2) (after the 1996 amendment).

Footnote 4:Interestingly, the UTT, in Section B - Plea of Not Guilty, under the spot where defendant enters his signature and address, there is the following notice: "NOTE: Mail this NOT GUILTY Plea within 48 hours. The court will notify you by First Class Mail of your appearance date." This notice is in contravention of the notice on the reverse side directing defendant to, "RETURN BY MAIL BEFORE OR IN PERSON ON: 11/1/2019 at 9:00 A.M." In the instant case, the UTT was issued on October 18, 2019. If, for example, defendant had returned the UTT on October 24, 2019, he would be in compliance with the first notice (to return by mail before November 1, 2019), but out of compliance with the second notice (to mail within 48 hours). To say this is confusing would be an understatement. It is misleading, for if the defendant complies with the first notice, but not the second notice, and if the Court adopted the People's logic in their opposition papers, it would result in an unknowing waiver of defendant's right to a supporting deposition.