Opinion
No. 2022-51243
11-23-2022
The People of the State of New York, Appellant, v. Carlos Ramos, Respondent.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for appellant. Carlos Ramos, respondent pro se (no brief filed).
Unpublished Opinion
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for appellant. Carlos Ramos, respondent pro se (no brief filed).
JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ
Appeal from an order of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Lewis Silverman, J.H.O.), entered January 11, 2022. The order granted defendant's motion to dismiss the simplified traffic information.
ORDERED that the order is reversed, on the law, defendant's motion to dismiss the simplified traffic information is denied, the simplified traffic information is reinstated, and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency for all further proceedings.
Defendant was charged in a simplified traffic information with using a mobile telephone while operating a motor vehicle (Vehicle and Traffic Law § 1225-c [2] [a]). A supporting deposition was provided to defendant which stated that, upon direct observation, the deponent police officer "did witness, the [] defendant operate [a] vehicle, at [12:18 p.m., on October 8, 2021, westbound, near exit 53, on the Long Island Expressway], a public highway, while operating a mobile telephone/electronic device." Subsequently, defendant moved to dismiss the simplified traffic information as being facially insufficient, and the People opposed the motion. In an order entered January 11, 2022, the District Court granted defendant's motion.
The relevant portion of Vehicle and Traffic Law § 1225-c (2) (a) provides that "no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion." For purposes of the statute, "using" a mobile telephone means holding a mobile telephone to, or in the immediate proximity of, the user's ear (Vehicle and Traffic Law § 1225-c [1] [c] [i]). Moreover, "[a]n operator of any motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section... [and] [t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call" (Vehicle and Traffic Law § 1225-c [2] [b]).
This court has previously determined that, where, as here, a supporting deposition states that the defendant was "operating a mobile telephone/electronic device," "[t]he use of the word 'operating' is close enough in meaning to 'using' to meet the reasonable cause requirement" of CPL 100.25 (2) (People v Ermmarino, 60 Misc.3d 50, 55 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Consequently, we find that the simplified traffic information was facially sufficient as it substantially conformed to the requirements therefor prescribed by law (see CPL 100.40 [2]), and the supporting deposition contained allegations of fact, based on personal knowledge or upon information and belief, providing reasonable cause to believe that defendant had committed the offense charged (see CPL 100.25 [2]; People v Hohmeyer, 70 N.Y.2d 41, 43 [1987]; People v Key, 45 N.Y.2d 111 [1978]; People v Ruiz, 64 Misc.3d 127 [A], 2019 NY Slip Op 50984[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; Ermmarino, 60 Misc.3d at 55).
In light of this court's findings on the merits, we need not pass upon the issue of whether defendant's motion was timely made.
Accordingly, the order is reversed, defendant's motion to dismiss the simplified traffic information is denied, the simplified traffic information is reinstated, and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency for all further proceedings.
GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.