Opinion
LL6662585.
Decided March 7, 2002.
Joseph W. Henneberry, Corporation Counsel, City of White Plains, White Plains, New York, for plaintiff.
Stephen J. Fein, P.C., Kems Gardens, New York, Attorney for Defendant.
FACTS
On October 26.2001 defendant was issued a simplified traffic information charging him with speeding in violation of Vehicle and Traffic Law § 1180(d). By letter dated October 31, 2001, defendant's lawyer notified the White Plains City Court that defendant was entering a not guilty plea and requested a supporting deposition from the complainant police officer. The foregoing letter was received by the Court on November 2, 2001. On November 15, 2001 a supporting deposition was served directly upon the defendant.
PROCEDURE
Defendant moves pursuant to CPL § 170.30(1)(a) for dismissal of the simplified traffic information upon the ground that failure to serve a supporting deposition on detendant's lawyer renders the simplified traffic information insufficient on its face.
In opposition, the prosecution correctly points out that the Court order directing the complainant police officer to serve and file a supporting deposition failed to indicate either the name or address of defendant's lawyer. Therefore, in the absence of such information, the prosecution concludes that service of the supporting deposition directly upon the defendant satisfies the requirements of law.
By this pretrial motion, the Court is called upon to decide whether the inadvertent omission of an attorneys name and address in an otherwise valid court order, which results in the service of a supporting deposition directly upon a represented defendant, is a sufficient basis to warrant dismissal of the simplified traffic information as a matter of law.
DISCUSSION
CPL § 100.25(2) provides that a defendant charged by a simplified information Is "upon a timely request, entitled as a matter of right'' to a supporting deposition of the complainant police officer and that "[u]pon such a request," the court must order the officer to serve a copy of the same "within 30 days of the date such request is received by the court, or at least five days before trial, whichever is earlier . . ." (see also, People v. DeFeo. 77 Misc 2d 523 [App. Term 2nd Dept. 1974]). A failure to provide a supporting deposition in a timely manner renders the simplified traffic information defective as a matter of law and subject to dismissal (see. People v. Nuccio. 78 NY2d 102; People v. Aucello, 146 Misc 2d 417 [App. Term 2nd Dept. 1990]). This is so even when the complainant police officer is never ordered by the court to serve a supporting deposition (see, People v. Titus, 178 Misc 2d 687 [App. Term 2nd Dept. 1998]; People v. Zagorsky, 73 Misc 2d 420 [Co. Ct. Broome Co. 1973]; People v. Abajian, 142 Misc 2d 250 [Just. Ct. Rockland Co. 1989]).
Defense counsel's timely letter request directed to the Clerk of the Court was sufficient to trigger the requirements of CPL 100.25 (see, People v. Thumser, 148 Misc 2d 472 [App. Term 9th 10th Jud. Dists. 1990]; see also, People v. Branchinelli, 146 Misc 2d 73 [Dist. Ct. Nassau Co. 1989] [a defendant is not required to notify the district attorney of his request for a supporting deposition]; contra, People v. Schlosser, 129 Misc 2d 690 [Dist. Ct. Nassau Co. 1985]). Thereafter, it was the responsibility of the Court to order the complainant police officer to serve and file a supporting deposition (see, People v. Zagorsky, 73 Misc 2d 420 [Co. Ct. Broome Co. 1973]).
It is undisputed that the prosecution was not provided with information regarding defense counsel's appearance in this matter and, as a result, served the supporting deposition directly upon the defendant. One lower court has held that "where a defendant has appeared by an attorney, the supporting deposition called for under CPL § 100.25 must be served upon that attorney within the 30-day period prescribed by statute, failing which the accusatory instrument has been rendered jurisdictionally defective and the action must be dismissed" ( People v. Rossi, 154 Misc 2d 616 [Justice Ct. Nassau Co. 1992]).
In 2001 the City Court of White Plains processed 13,858 traffic tickets. It is the customary practice of court staff ill the traffic department to annex a copy of all attorney's appearance letter to the order directing service of a supporting deposition.
While this Court finds the decision in Rossi both well-reasoned and persuasive, it is nonetheless obliged to analyze a threshold issue not advanced in the papers — jurisdiction to entertain the instant motion.
Criminal Procedure Law § 170.30(1) states, in pertinent part, as follows: " After arraigment [emphasis added] upon . . . a simplified information . . ., the local criminal court may, upon motion of the defendant, dismiss such instrument . . . upon the ground that: (a) It is defective, within the meaning of section 170.35. . . . An arraignment is defined as "the occasion upon which a defendant against whom an accusatory instrument has been filed appears before the court in which the criminal action is pending for the purpose of having such court acquire and exercise control over his person with respect to such accusatory instrument and of setting the course of further proceedings in the action" (CPL § 1.20).
A "simplified information" means a "simplified traffic information" (CPL § 1.20[5][a]).
Although the general rule is that a defendant must personally appear in court for arraignment, the Legislature has provided two exceptions whereby a defendant charged in a simplified information may be arraigned without a court appearance (see CPL § 170.10[a], [b]).
The first exception, set forth in CPL § 170.10(1)(a), applies when an alternative provision of law dispenses with the need for an arraignment or defendant's personal appearance. As discussed in People v. Perry, 87 NY2d 357 (1996), the only provision of law arguably applicable in this context is Vehicle and Traffic Law § 1806, which enables a defendant charged with a traffic infraction to enter a not guilty plea "by mailing to the court of 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" (VTL § 1806) (see also, People v. Maran, 174 Misc 2d 327 [App. Term 2nd Dept. 1997]).
In People v. Perry, supra, the Court of Appeals Held that a defendant's request for a supporting deposition made prior to arraignment tailed to trigger the People's statutory obligation under CPL § 100.25(2). In view of the October 27, 1996 amendments to CPL § 100.25, the conclusion reached in Perry appears to have been superseded by statute (see, People v. Guerrerio, 181 Misc 2d 517 (Just. Ct. Nassau Co. 1999).
In the instant case, defendant did not comply with the plea-by-mail provision of VTL § 1806. Specifically, not only did defendant fail to send his ticket along with his plea, his lawyer's appearance letter was sent five days after he received the simplified traffic information.
The second exception, set forth in CPL § 170.10(1)(b), permits defense counsel to enter an appearance in lieu of defendant "for good cause shown" (CPL § 170.10[b]). Since the defendant has failed to demonstrate any showing of "good cause," this statutory exception is unavailable.
CONCLUSION
In accord with the above analysis. the Court holds that defendant has not been arraigned on the simplified traffic information and, as such. jurisdiction over this defendant has not been acquired (see, People v. Grant, 16 NY2d 722). Therefore, defendants motion pursuant to CPL § 170.30(1)(a) is denied as premature (see, People v. Marzban, 172 Misc 2d 987 [Sup. Ct. Queens Co. 1997]; People v. New York Paving, Inc., 155 Misc 2d 176 [Crim. Ct. Queens Co. 1992]; People v. Byfield, 131 Misc 2d 884 [Crim. Ct. NY Co. 1986]).
THIS DECISION CONSTITUTES THE ORDER OF THE COURT