Opinion
19060233
02-21-2020
PEOPLE of the State of New York v. James L. STERRITT, Defendant.
FOR THE PEOPLE: PAUL CZAJKA, ESQ., COLUMBIA COUNTY DISTRICT ATTORNEY, 325 Columbia Street, Hudson, New York 12534, By: Trevor O. Flike, Assistant District Attorney FOR THE DEFENDANT: GERSTENZANG, SILLS, COHN & GERSTENZANG, 210 Great Oaks Boulevard, Albany, New York 12203, By: Joseph M. Gerstenzang, Esq.
FOR THE PEOPLE: PAUL CZAJKA, ESQ., COLUMBIA COUNTY DISTRICT ATTORNEY, 325 Columbia Street, Hudson, New York 12534, By: Trevor O. Flike, Assistant District Attorney
FOR THE DEFENDANT: GERSTENZANG, SILLS, COHN & GERSTENZANG, 210 Great Oaks Boulevard, Albany, New York 12203, By: Joseph M. Gerstenzang, Esq.
Borgia-Forster, J.
On June 20, 2019, Simplified Traffic Informations were issued charging the defendant with Aggravated Driving While Intoxicated in violation of NYS VTL§ 1192(2-a)(a), common law Driving While Intoxicated in violation of NYS VTL§ 1192(3), and Moving From Lane Unsafely in violation of NYS VTL§ 1128(a). A certified breath analysis and DWI Bill of Particulars were also filed with the Court. The Simplified Traffic Informations were made returnable to this Court on July 24, 2019 at 4pm. Court was not in session on July 24, 2019 at 4pm.
Defendant was notified by the Court to appear on July 17, 2019, however, defendant failed to appear on that date, and the case was rescheduled for August 28, 2019. At the August 28, 2019 court date, the Defendant appeared with counsel.
At that appearance, by Notice of Motion dated August 20, 2019, the defendant moved to dismiss the case for lack of jurisdiction on the grounds "that the Court was not in session at the time that the appearance tickets were returnable ". Before the Court decided the motion, the People served upon the defendant and filed with this Court superseding simplified traffic informations alleging the same three violations of the NYS Vehicle and Traffic Law.
The defendant was arraigned on all charges on October 2, 2019, at which time the defendant entered a plea of not guilty. The Court subsequently held a Pringle hearing and the defendant's driving privileges were suspended pending prosecution. Thereafter, the Defendant demanded a supporting deposition with regard to "each charge against the defendant." That demand was received by the Court on or about October 7, 2019.
On or about November 14, 2019, the defendant filed an omnibus motion seeking the following relief from the Court:
(1) dismissing the accusatory instruments on the grounds that the same are defective on their face and that the defendant did not receive a supporting deposition pursuant to NYS CPL § 100.25,
(2) directing the People to respond to defendant's Demand to Produce,
(3) directing the People to provide all Brady and Rosario material,
(4) directing the People to disclose any specific instances of prior convictions, or uncharged criminal or immoral conduct of the defendant that they intend to use at trial, or in the alternative, granting the defendant a Sandoval/Ventimiglia/Molineaux hearing,
(5) precluding the People from introducing into evidence any statements made by the defendant not disclosed pursuant to NYS CPL § 710.30,
(6) suppressing any statements made by defendant, or in the alternative, granting a Huntley hearing,
(7) suppressing any tangible evidence for lack of probable cause, or in the alternative granting a Mapp/Dunaway hearing,
(8) for the Court to issue a decision setting forth its Findings of Facts and Conclusions of Law and the reasons for its determination, and
(9) granting an order permitting future motions.
On or about December 16, 2019, the People filed with the Court the affirmation of Trevor O Flike, Esq., in opposition to defendant's omnibus motion. In the affirmation, the People argue that:
(1) Since the superseding simplified traffic informations were filed within 30 days of the dismissal of the original simplified traffic informations, and since the DWI Bill of Particulars/Supporting Deposition had not yet been sealed by the Court, the People were able to refile the same DWI Bill of Particulars/Supporting Deposition in support of the superseding simplified traffic informations,
(2) that the defendant's request for discovery is pre-mature,
(3) that the People acknowledge their continuing duties under Brady and Rosario ,
(4) that the People consent to a Sandoval/Ventimiglia/Molineaux hearing,
(5) that the People are in compliance with NYS CPL § 710.30,
(6) that the People oppose suppression of statements, but consent to a Huntley hearing,
(7) that the People oppose suppression of tangible evidence, asserting that the NYS State Trooper had probable cause for the arrest and therefore oppose defendant's request for a Mapp/Dunaway hearing, and
(8) that the People oppose defendant's request for leave to make future motions.
Motion to Dismiss Original DWI Charges
With respect to defendant's August 20, 2019 motion to dismiss the DWI accusatory instruments as defective, the Court finds that the accusatory instruments are sufficient on their face. Defendant argues that the initial simplified traffic informations filed with the Court were defective since they contained a return date for when the Court was not in session. The Court never ruled upon the defendant's previously filed motion to dismiss dated August 20, 2019, because it was unclear whether the same was properly withdrawn. In any event, and in the Court's discretion, it is appropriate to rule on that motion at this time. The Defendant's motion to dismiss the original simplified traffic informations is hereby denied.
Under the Uniform Justice Court Act, "the court shall have such jurisdiction of criminal matters as is prescribed by the criminal procedure law." Subject matter jurisdiction is conferred upon the Court upon the filing of the simplified traffic information . Personal jurisdiction over the defendant does not exist until the defendant is validly arraigned, except where "a procedure is provided by law which is applicable to all offenses charged in such simplified information and, if followed, would dispense with an arraignment or personal appearance of [a] defendant". A simplified traffic information "may serve both to commence a criminal action for such offense and as a basis for prosecution" once it is filed in a local criminal court and then the court will have jurisdiction to issue process and warrants and conduct trials within the constraints of NYS CPL § 100.25 and CPL § 1.20(5)(b).
NYS UJCA § 2001.
People v. Guerrerio, 181 Misc 2d 517, 520 (1999).
People v. Cruz, 86 AD3d 782, 783 (3d Dept. 2011).
People v. Fatsis, 180 Misc 2d 172, 173 (1999).
Before the amendment to NYS VTL § 1806, the failure of a court to be open on the return date of the Simplified traffic informations deprived the court of jurisdiction to proceed further with said simplified traffic informations . Prior to the amendment of NYS VTL § 1806, the Court was required to schedule a traffic matter for trial upon the receipt of a not guilty plea by mail (see, People v. Cruz , supra. at 783-784). The logic was that under the prior law, an error in the return date on a simplified traffic information would lead to the defendant showing up ready for trial and the prosecution not being ready for trial entitling a defendant to a dismissal of the simplified traffic information.
Shapiro v. MacAffer, 99 Misc 2d 694, 695 (1979) and Abbott v. Rose, 40 Misc 2d 64, 67 (1963).
In 2009 the Legislature amended NYS VTL § 1806 to make it incumbent upon the Court to schedule an "appearance" date before scheduling a trial. The statute was further amended in 2012 to clarify that "no testimony shall be taken" at the first appearance date . "There is no consequence upon failure to appear for the appearance date as the court must notify the defendant of a new appearance date ." The statute gives the defendant the option of pleading not guilty by mail, and upon receipt of the plea the court shall:
NYS VTL § 1806.
NYS VTL § 1806.
Practice Commentary, Carrieri, 2009 Practice Commentaries McKinney's Cons. Laws of NY, Book 62A, VTL § 1806, at 340.
advise the violator, by first class mail, of an appearance at which no testimony shall be taken. If the motorist requests a trial, the court shall set a trial date on a date subsequent to the date of the initial appearance and shall notify the defendant of the date by first class mail but no warrant of arrest for failure to appear can be issued until the violator is notified of a new court appearance date by registered or certified mail, return receipt requested, and fails to appear.
McKinney's Cons. Laws of New York, Book 62A, Vehicle and Traffic Law § 1806.
The failure of the court to arraign a defendant in person does not deprive it of jurisdiction to schedule a pre-trial conference/trial date, or to issue a warrant of arrest for failure to appear after sending the defendant appropriate notices.
People v. Cruz, supra. at 784.
Accordingly, any errors on the simplified traffic informations relating to the return date are not jurisdictional, as they simply notify defendant of a pre-trial conference only . Therefore, the original simplified traffic informations which were filed with the Court did not deprive the Court of either personal or subject matter jurisdiction.
People v. Cruz, supra.; People v. Fatsis, supra.
The Court may send a defendant a notice of a pre-trial conference by regular mail, and absent a response or appearance, thereafter is to send another notice by certified mail return receipt requested before issuing an arrest warrant . Moreover, the Court has the power to order a suspension of defendant's driving privileges for nonappearance at said pre-trial conference .
NYS VTL § 1806 ; People v. Cruz, supra.
, NYS VTL § 514(3)(a).
The Court finds that the original simplified traffic informations are sufficient on their face and the DWI Bill of Particulars/Supporting Deposition filed therewith satisfied defendant's demand for a supporting deposition with respect to the DWI charges.
Motion to Dismiss Superseding DWI Charges
With respect to the Defendant's November 14, 2019 Motion to Dismiss, Defendant argues further that the superseding simplified traffic informations that were filed with the Court are defective because the People failed to file a second DWI Bill of Particulars/Supporting Deposition in support of the superseding simplified traffic informations. With respect to the superseding simplified traffic informations, although the Court accepted the same for filing, they cannot supersede and replace the original Simplified Traffic Informations filed with the Court .
NYS CPL § 100.50 ; People v. Quarles, 168 Misc 2d 638 (1996) ; People v. Finch, 19 Misc 3d 840 (2008) ; People v. Baron, 107 Misc 2d 59 (Appellate Term, 2nd Dept. 1980) ; People v. Pregent, 142 Misc 2d 344 (1988) ; People v. Flood, 25 Misc 3d 843 (2009).
CPL 100.50 states that a superseding information may only be substituted for an information, prosecutor's information or misdemeanor complaint. A comparison of the sections setting forth the definition and requirements of a simplified traffic information (see CPL 1.20, subd 5, par [b]; 100.10, subd 2, par [a]; 100.25) with those of an information ( CPL 1.20, subd 4 ; 100.10, subd 1; 100.15) reveal that the two accusatory instruments are separate and unrelated entities and that a simplified traffic information is not an information of a lower category. Indeed, it appears that the use of the term "information" in describing a simplified traffic information may be misleading. An information in order to be valid requires that every element of the offense charged and defendant's commission thereof be supported by nonhearsay allegations ( CPL 100.15, subd 3 ; 100.40, subd 1) and must be verified in accordance with CPL 100.30. A simplified traffic information is issued at the scene of the traffic infraction ( CPL 100.10, subd 2 ) and is sufficient on its face unless a demand is made for a supporting deposition ( CPL 100.25 ). Additionally, there is no requirement that the supporting deposition establish every element of the crime by nonhearsay allegations, rather the simplified traffic information and supporting deposition is sufficient if based upon either personal knowledge or information and belief ( CPL 100.25, subd 2 ).
Based upon the foregoing, it appears that a simplified traffic information can only be amended so as to cure amendable defects and cannot, as in the case at bar, be superseded by an information.
NYS CPL § 100.50 ; People v. Quarles, 168 Misc 2d 638 (1996); People v. Finch, 19 Misc 3d 840 (2008) ; People v. Baron, 107 Misc 2d 59 (Appellate Term, 2nd Dept. 1980) ; People v. Pregent, 142 Misc 2d 344 (1988) ; People v. Flood, 25 Misc 3d 843 (2009).
Accordingly, the superseding simplified traffic informations filed with the Court are deemed a nullity.
Motion to Dismiss non-DWI Charges
Defendant also moves to dismiss the charge of Moving From Lane Unsafely in violation of NYS VTL§ 1128(a) by reason of the failure of the prosecution to provide the defendant with a supporting deposition pursuant to NYS CPL § 100.25. The simplified traffic information charging the defendant with this traffic infraction was made returnable July 24, 2019 at 4pm. Defendant demanded a supporting deposition on or about October 2, 2019, when he appeared for arraignment on the superseding simplified traffic informations. Therefore, the request was not made timely. By reason of the foregoing, defendant's motion to dismiss the charge of Moving From Lane Unsafely in violation of NYS VTL§ 1128(a) is hereby denied.
See, NYS CPL § 100.25.
Motion to Compel Discovery
Defendant has explicitly consented to the People not formally responding to defendant's discovery demands at this juncture. Therefore, the issue is moot.
Motion to Compel Brady/Rosario Materials
Defendant moves for an Order pursuant to Brady v. Maryland . In Brady, the Supreme Court held that the People must disclose to a criminal defendant evidence in its possession that is (1) favorable to the defendant and (2) material either to guilt or punishment. This rule rests on the premise that proceedings cannot be fair if evidence is withheld which casts doubt on the guilt of the defendant. It is incumbent on the People, as a matter of due process, to ensure that material evidence in its possession that is exculpatory in nature be turned over to the defendant. The People aver that they are not in currently in possession of any Brady . The People are directed to turn over such evidence, if any, that comes into their possession.
373 US 83 (1963).
People v. Vilardi, 76 NY2d 67 (1990).
People v. Novoa, 70 NY2d 490 (1987).
Defendant further moves to compel the production of all materials pursuant to People v. Rosario . Although the People aver neither to be in the possession of Rosario n or to have knowledge of Rosario material at this time, the People are directed to turn over any such evidence, if any, that comes into their possession.
9 NY2d 286 (1961).
Motion for Sandoval/Ventimiglia/Molineux Information
Defendant has requested that the Court preclude the People from offering any evidence with respect to prior convictions or immoral acts by the defendant. Under People v. Molineux , the defendant is entitled to a pre-trial hearing to determine the admissibility of uncharged crimes committed by the defendant as part of the People's direct case. Under People v. Sandoval , the defendant is entitled to a hearing to determine the admissibility, in cross-examination impeachment of the defendant, of prior criminal convictions. Under People v. Ventimiglia , the defendant is entitled to a hearing on the admissibility of evidence of uncharged crimes which do not directly inculpate the defendant but from which guilt may be inferred. The People are reminded of their duties pursuant to NYS CPL § 240.20. The People consent to a Sandoval/Ventimiglia/Molineux hearing. Defendant's motion is granted and a Sandavol/Ventimiglia/Molineux hearing shall be held immediately prior to the commencement of jury selection at trial of the underlying charge. The People shall disclose to defendant any judgment of conviction or pending criminal action against any person they intend to call as a witness pursuant to CPL § 240.20(1)(p-q).
168 NY 264 (1901).
34 NY2d 371 (1974).
52 NY2d 350 (1981).
Motion to Suppress Statements Pursuant to CPL § 710.30
The defendant seeks to preclude or suppress any statements made by the defendant. The People are required to produce copies of any statements, recordings, videotapes and/or photographs pertaining to the instant case pursuant to NYS CPL § 710.30. NYS CPL § 710.30 states:
1. Whenever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, or (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.
2. Such notice must be served within fifteen days after arraignment and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial, pursuant to subdivision one of section 710.40, to suppress the specified evidence. For good cause shown, however, the court may permit the People to serve such notice, thereafter and in such case it must accord the defendant reasonable opportunity thereafter to make a suppression motion.
3. In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible as prescribed in subdivision two of section 710.70.
With respect to the instant case, the People are precluded from introducing any statements, recordings, videotapes and/or photographs of the defendant that have not been noticed pursuant to NYS CPL § 710.30. The Court also grants defendant a Huntley hearing to determine the admissibility and voluntariness of any confessions, statements and/or waivers allegedly made by the defendant, and the admissibility of any tangible evidence.
People v. Huntley , 15 NY2d 72 (1965) ; CPL § 710.60(4) ; People v. Weaver, 49 NY2d 1012 (1980).
Motion to Suppress Tangible Evidence
The Court hereby grants a Mapp hearing to determine the validity of any search warrants and the admissibility of any property or conversations seized or acquired as a result thereof . Defendant's request for a hearing as to the probable cause for the arrest of the defendant is also granted. Where the papers submitted in support of a motion to suppress raise a factual dispute on a material point which must be resolved before the Court can decide a legal issue, a hearing is required . Here the question of whether there was probable cause for the arrest is a question of fact which requires a hearing. Therefore, the Court shall hold a Dunaway hearing before trial.
Mapp v. Ohio, 367 US 643 (1961).
People v. Mendoza, 82 NY2d 415, 426 (1993), citing People v. Gruden, 42 NY2d 214, 215 (1977).
CPL § 710.60(4) ; Dunaway v. New York, 442 US 200 (1979).
Reservation of Rights ( CPL § 255.20 )
Defendant's request for leave to renew all motions made herein is denied. However, the Court hereby grants defendant leave to move this Court at any time before the end of trial for additional relief that becomes necessary as a result of matters not currently known or for good cause shown regarding matters that could not have reasonably been raised within the time required for making pre-trial motions pursuant to NYS CPL § 255.20.
Defendant is entitled to be present at every stage of the proceedings. All motions not granted herein are hereby denied. This opinion shall constitute the Decision and Order of the Court.