Opinion
07090308.
Decided June 6, 2008.
Meredith Vacca, Esq., Assistant District Attorney.
Warren Welch, Esq., Attorney for Defendant.
History of the Case.
On August 13, 2007, the defendant was charged with Following
Too Closely, in violaiton of V.T.L. Section 1129(a). That section states as follows:
"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."
The defendant was issued a Uniform Traffic Ticket, which directed him to appear in Webster Justice Court on September 13, 2007. The matter was eventually adjourned for argument of motions on May 7, 2008. Defendant's motions demanded the dismissal of the Uniform Traffic Ticket herein, pursuant to CPL 170.30(1)(a), upon the ground that the supporting deposition is defective pursuant to CPL 170.35 and CPL 100.40(1)(c).
Facts of the Case.
The Supporting Deposition states in sum and substance that on September 13, 2007 at 8:58 A.M. the defendant was operating a 2005 Jeep westbound on the State 104 Access Road in the Town of Webster, County of Monroe and State of New York. Trooper S. J. Stenclik stated that "The defendant was following too closely to a Town of Webster Tractor, striking the tractor from the rear with the vehicle he was driving causing the tractor to overturn." The trooper indicated that the charge was based on "information and belief".
Issues. Must the simplified traffic information be dismissed because the supporting deposition fails to establish by non-hearsay allegations, if true, every element of the charge against the defendant?
Is the supporting deposition supplied by the arresting officer sufficient as defined by C.P.L. 100.25(2), 100.40(1)(c) and 170.35(1)(a)?
Legal Analysis. A. Sufficiency of Supporting Deposition based on a lack of non-hearsay allegations.
Criminal Procedure Law Section 100.40(1)(c) states as follows:
An information, or count thereof, is sufficient on its face when: "Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.
In this case the defendant was served with a local criminal accusatory instrument
known as a Simplified Traffic Information, as defined by C.P.L. 100.10(2)(a) and not an "information" as defined by C.P.L. 100.10(1). A simplified traffic information
" . . . is a written accusation by a police officer . . . filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges.' Thereafter, upon request of a defendant, the People must serve, 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.' [C.P.L. § 100.25(2)]". People v. Howell, (1993) 158 Misc 2d 653,654, 601 N.Y.S.2d 778, 779.
Thus, despite the fact that neither the simplified traffic information nor the supporting deposition fails to support every element of the offense charged by non-hearsay allegations, there is not a permitted basis to dismiss the local accusatory instrument herein.
B. Sufficiency of supporting deposition based on specific allegations herein.
In the instant case the supporting deposition alleges the infraction of following too close upon "information and belief" as permitted by C.P.L 100.25(2). However, C.P.L. 100.25(2) further requires that the allegations provide " . . . reasonable cause to believe that the defendant committed the offense or offenses charged." C.P.L. 100.20 further requires that a supporting deposition contain "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." [Emphasis added]. In order to supplement the accusatory instrument, a "deposition supporting a simplified traffic information, to the extent it is based on information and belief, must contain a statement of the source of that information and belief if it is to be sufficient on its face." People v. Lesnak (1995) 165 Misc 2d 706,709, 630 N.Y.S.2d 459,461. A supporting deposition which is based upon information and belief, that does not state the source of the deponent's knowledge, would only be parroting the statute in question. It would not be supplementing the local accusatory instrument so that the defendant could know the specific facts alleged against him and would permit him to prepare a defense to same.
The allegations in the supporting deposition set out "upon information and belief" do not indicate how Trooper Stenclik knew the defendant was operating too close to the tractor that hit by the defendant. Since the trooper did not indicate the source of his information and belief of facts of the case, the supporting deposition herein must be dismissed as being insufficient on it face pursuant to C.P.L. Sections 170.35(1)(a), 100.25(2) and 100.40(1)(c).
Conclusion.
The charge of following too close, in violation V.T.L. Section 1129(a), which was filed against the defendant, is hereby dismissed, without prejudice. This constitutes the decision and order of this court.