Opinion
07120222.
Decided on February 21, 2008.
Meredith Vacca, Esq., Assistant District Attorney.
Edward L. Fiandach, Esq. Attorney for the Defendant.
The defendant was charged with Speed not reasonable and prudent in violation of VTL 1180(a), Moved from Lane Unsafely, VTL 1128(a), Common Law Driving while Intoxicated, VTL 1192(3) and Aggravated Driving While Intoxicated, VTL 1192(2-a) on December 16, 2007 at approximately 2:30 A.M on Lake Road in the Town of Webster, County of Monroe. The defendant was issued Simplified Traffic Informations, which were returnable on January 2, 2008. The defendant appeared for arraignment with counsel on that date. The matter was adjourned for argument of motions on February 6, 2008. The defense submitted Omnibus Motions, which among other things requested that the Simplified Traffic Informations charging the defendant with common law and aggravated driving while intoxicated be dismissed on the ground that same were not sufficient to the charge the crimes therein.
Facts of the Case.
The defendant was provided with a form, i.e. "fill-in-the blanks" supporting deposition, entitled "Supporting Deposition N.Y.S. V T Law Section 1192 Subdivision 3", which was signed by the arresting officer, Dennis Kohlmeier. The supporting deposition states in pertinent part "Your deponent did identify the operator of the vehicle as being the defendant subsequent to:
An investigation of a Motor Vehicle Accident." As a result, the defendant contends that the supporting deposition does not comply with C.P.L. 100.25(2). The applicable portion of that provision states as follows:
"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."
Said supporting deposition also has a section relating to the defendant's blood alcohol count, which is checked off and says that
The defendant was provided with a second supporting deposition entitled "Supporting Deposition Breath Test Administration". This second supporting deposition was signed by the breath test operator, Officer Shawn Welch. This supporting deposition dealt only with the administration of the breath test and the result thereof. It was not designed to deal in any way with operation of the motor vehicle in question. Thus it is not relevant to the issues at hand.
"Off. Welch administered a breath test, which the defendant failed. Your opponent did observe the administration of the breath test by Off. Welch, the defendant's offering of a breath sample, and the breath test results indicated .21 % B.A.C."
Boiled down to its essence, the defense contends that the face of the supporting deposition, that is the portion above the signature of the arresting officer, which attests to the contents of the wording above the signature, insufficiently sets out the basis for the arrest. In other words the supporting deposition fails to state either that the officer saw the defendant driving a motor vehicle or the specific reason for the officer's belief that the defendant had been driving a motor vehicle, while in an intoxicated condition. The defense argues that stating that the arrest is based on "An investigation of a Motor Vehicle Accident" does not comply with the requirements of C.P.L. 100.25(2) by not specifically stating what his investigation indicated.
Assuming arguendo that the attached "Alcohol Influence report" and the "ADDENDUM A Continuation of a Alcohol Influence Report" fills in the missing information, the defense contends that said documents do not satisfy C.P.L. 100.25(2), since they are not signed in a manner that would constitute an oath or would make false statements punishable as a class A misdemeanor pursuant to Penal Law Section 210.45. In addition, neither the Alcohol Influence Report nor the Addendum was incorporated by reference in the Supporting Deposition. Issue Presented.
C.P.L. 100.20 states that "A supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein."
Is the Supporting Deposition herein sufficient on its face pursuant to C.P.L. 100.20 and C.P.L. 100.25(2), despite the fact that it did not state specifically how the arresting officer made the determination that there was reasonable cause to arrest the defendant for driving while intoxicated?
Can the court consider the contents of an Alcohol Influence Report and the Addendum thereto in determining the sufficiency of a supporting deposition?
Legal Analysis.
A. Source of Information. A form supporting deposition, wherein the arresting officer could put a check mark in the square next to the language appropriate to the case, was provided by the People to the defendant. This type of supporting deposition has long been in use in this state. In fact, such a supporting deposition was approved by the Court of Appeals. See People v. Hohmeyer, (1987) 70 NY2d 41, 517 N.Y.S.2d 448. A supporting deposition is required to be provided to the defense, in order to explain not only what the defendant is charged with, but to explain how the People came upon that information, when the officer did not observe the alleged offense being committed. Criminal Procedure Law section 100.25(2) requires that the allegations set out in the supporting deposition be acquired by "personal knowledge" or "upon information and belief", and that said allegations establish "reasonable cause" to believe that the defendant committed the offense in question. C.P.L. 70.10(2) states that
"Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it."
However, the definition begs the question as to what constitutes the appropriate amount of "facts or circumstances" that collectively should convince that elusive "person of ordinary intelligence" when there has been no personal observation by the arresting officer?Those so-called "facts and circumstances" can be established, for purposes of reasonable cause, upon information and belief, when the supporting deposition sets out source of that hearsay. People v. Lesnak (1995) 165 Misc2d 706, 709, 630 N.Y.S.2d 459, 461.
In the instant case, the supporting deposition indicated that the arresting officer identified the defendant as the operator of the vehicle subsequent to "An investigation of a Motor Vehicle Accident". Such a statement does not assist the defendant in knowing specifically who or what led the officer to make the conclusion that the defendant, who was described in the supporting deposition as exhibiting many of the common indicia of intoxication, was driving a motor vehicle in an intoxicated condition.
"In order to be considered adequate, a supporting deposition must set forth facts in a plain and concise manner which provide a reasonable cause to believe that the defendant committed every necessary element of the offense charged. Furthermore, because a supporting deposition is so vital to the defendant in traffic infraction cases, the failure to provide an adequate one cannot be looked upon as a mere technical defect." People v. Hust (1973) 74 Misc2d 887, 890, 346 N.Y.S.2d 303, 307.
Use of a nebulous phrase, such as "Investigation of a Motor Vehicle Accident", to establish operation of a motor vehicle does not reach the required standard. The court notes that another box set out in the supporting deposition marked "Other" could have been checked. Next to that box and the word "Other" is blank line whereon additional information about the officer's investigation could have been entered.
B. Attachments to the Supporting Deposition.On the reverse side of the form supporting deposition herein is the "Alcohol Influence Report" and "Sobriety Checks". In addition, attached thereto as "Page 3 of 3" is the "ADDENDUM A continuation of a Alcohol Influence Report". None of these forms are signed in accordance with C.P.L. 100.30 (1)(d).
That provision states that
"Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument."
Furthermore, none of the aforementioned forms were incorporated by reference on the face of the supporting deposition above the required signature of the deponent. Criminal Procedure Law section 140.45 permits dismissal of a local criminal court accusatory instrument
". . . if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw or file an accusatory instrument which is sufficient on its face. . . ." The key words are "facts or evidence". Same could not be gleaned from unsworn or inadequately executed supporting documents. Thus neither the Alcohol Influence Report nor its Addendum can be considered in determining the sufficiency of the supporting deposition. See People v. Powlowski, (1997) 172 Misc 2d 240, 246. 658 N.Y.S.2d 558, 562, 1997 NY Slip Op. 97208, wherein the court refused to consider a DMV teletype setting out the defendant's prior driving while intoxicated conviction, for purposes of establishing the sufficiency of a simplified information charging the defendant with driving while ability impaired as a misdemeanor.
Conclusion.
The supporting deposition in this matter is not sufficient on its face in accordance with C.P.L. 100.40(2). Criminal Procedure Law 170.30(1)(a) provides for a dismissal of a local court accusatory instrument when same is defective due to insufficiency. However, Criminal Procedure Law 170.35(1)(a) requires that such an accusatory instrument ". . . may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend."Amendments that are permitted are ". . . limited to matters of time, place, names of persons and the like'". People v Parris (1982) 113, Misc2d 1066, 1069, 450 NY2d 721, 724. (See also, Carmody-Wait 2d 172:2435 and C.P.L. 200.70.) Nevertheless, ". . . if the pleading omits elements necessary to state the crime, the defect is jurisdictional. An objection to the pleading based on this defect will be preserved from waiver by plea of guilty even though the defect is not noticed until the court of last resort." People v. Parris (1982) supra 1068, 723. In this case the supporting deposition failed to state that the arresting officer observed the defendant operate a motor vehicle or failed to allege operation by the defendant on information and belief setting forth the specific source of that conclusion.
Nor can the Alcohol Influence Report or the Addendum to the Alcohol Influence Report be used to establish the sufficiency of said supporting deposition. Said documents were not executed in accordance with C.P.L. 100.30. Finally, those documents were not incorporated by reference into the Supporting Deposition.
Therefore the simplified traffic informations charging the defendants with Common Law Driving While Intoxicated in violation of V.T.L. 1192(3) and Aggravated Driving While Intoxicated in violation of V.T.L. 1192(2-a) are hereby dismissed without prejudice. The case is restored to the disposition calender on March 19, 2008 at 1:00 P.M. This constitutes the decision and order of this court.
"Dismissal of an information on the ground of insufficiency is neither an acquittal nor an adjudication on the merits. The dismissal of a legally insufficient information does not bar reprosecution by the People, nor does the failure to reprosecute imply a person's innocence." Carmody-Wait Section 172:2435. The court in People v. Parris (1982) 113 Misc 2d 1066,1071, 450 N.Y.S.2d 721, 725, which dealt with similar situation as the case at bar, stated in a footnote that
"The conclusion seems impractical and senseless that a facially defective complaint cannot be cured after its initial intake. Yet, CPL 170.35 dictates that the court dismiss such a pleading unless it can be cured by amendment. A defect, as we have at bar, where elements of the crimes are omitted, cannot be cured pursuant to CPL 200.70. This permits amendments of formal, non-essential matters of time, place, names and the like-a type of amendment hardly likely to cure a facial defect involving a missing element."
The court went to say that "On the other hand, the foregoing conclusion points up an oversight in the Criminal Procedure Law requiring legislative attention. Certainly, this court should not, through the guise of interpretation, supply what the statute omits." Ibid. 1071,725.