Opinion
2010-2238 OR CR.
Decided June 17, 2011.
Appeal from a judgment of the Justice Court of the Village of Harriman, Orange County (Christine K. Wienberg, J.), rendered August 5, 2010. The judgment convicted defendant, after a nonjury trial, of failing to obey a traffic control device.
ORDERED that the judgment of conviction is reversed, on the law, the information is dismissed, and the fine, if paid, is remitted.
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ.
Defendant was charged in a simplified traffic information with failing to obey a traffic control device (Vehicle and Traffic Law § 1110 [A]). He timely requested a supporting deposition. Subsequently, defendant moved to dismiss the accusatory instrument on the ground that he had never received a copy of the supporting deposition. In response, the arresting officer stated that he had mailed the supporting deposition to defendant's address, and proffered his affidavit of service. The Justice Court determined that the affidavit of service sufficiently established that the arresting officer had mailed defendant a copy of the supporting deposition and, following the nonjury trial, found defendant guilty of the charged offense.
The information was facially insufficient. According to his own affidavit of service, the arresting officer did not mail his supporting deposition to defendant's correct address. Consequently, the People failed to establish that a proper mailing occurred ( see CPLR 2103 [c], [f] [1]; People v Hollinger , 15 Misc 3d 130 [A], 2007 NY Slip Op 50622[U] [App Term, 9th 10th Jud Dists 2007] [omitting defendant's address on affidavit of service]; cf. People v Godoy, 180 Misc 2d 771), and, thus, there was no proof that the supporting deposition was ever served. Under the circumstances, the simplified traffic information is jurisdictionally insufficient (CPL 100.25).
We note in passing that the People waived any objection to defendant's failure to move to dismiss the simplified traffic information in writing and upon reasonable notice to the People ( see People v Jennings, 69 NY2d 103, 113; People v Brye, 233 AD2d 775, 776 [writing requirement]; People v Cook, 193 AD2d 366, 369 [notice requirement]), inasmuch as they neglected to raise the issue below.
In view of the foregoing, the other issue raised on appeal need not be considered.
Nicolai, P.J., LaCava and Iannacci, JJ., concur.