Opinion
February 8, 2000
Theodore J. Wienclaw, defendant pro se.
Howard O'Rourke, Village Prosecutor of Village of Valley Stream (Steven Reddan of counsel), for plaintiff.
Decision of Motion
The case at bar presents an issue apparently of first impression concerning the sufficiency of an accusatory instrument. Specifically, may an information be dismissed where cross-outs and corrections have occurred in a significant part of the accusatory instrument. This motion of the defendant, Theodore J. Wienclaw, is determined as hereinafter provided.
The defendant is charged with parking his motor vehicle at an expired meter, a violation of § 93-59B of the Code of the of the Incorporated Village of Valley Stream. The violation is alleged to have occurred on East Lincoln Avenue, Village of Valley Stream, New York at parking meter number 179. The defendant moves to dismiss the accusatory instrument based upon the ground that the information was insufficient and defective on its face, under CPL 170.30 (1)(a) and 170.35 (1)(a).
Procedural Background
As a preliminary matter, the court notes this action is in conformity with the New York Criminal Procedure Law (CPL), due to the fact the CPL has been held applicable to traffic infractions (see V.T.L. 155; People v. Amitrano, 59 Misc.2d 471 (Suffolk Co. Dist. Ct. 1969)) as well as local municipal ordinances (People v. Hacker, 76 Misc.2d 610 (Suffolk Co. Dist. Ct. 1973)). Therefore all criminal statutory presumptions of the local ordinance are required to be adhered to and considered valid. People v. Chen Ye, 179 Misc.2d 592 (N.Y. Crim. Ct. 1999).
The court has generously granted a time frame for any party that chose to submit briefs or affidavits. Since there is no timetable for filing and return of papers in the C.P.L., the court has taken the unprecedented step of relying on the Civil Practice Law and Rules (CPLR) for guidance. It has been held that under certain circumstances, where the CPL does not provide a standard by which to measure compliance with a rule, it is reasonable to refer to the CPLR People v. Duquette, 152 Misc.2d 239 (Co. Ct. St. Lawrence Co. 1991). In Duquette, the court relied on the provisions of the CPLR for the timely service of notices of appeal. In another case, a court relied on the provisions of CPLR for service of notification of request to appear before a Grand Jury. People v. Fulton, 162 Misc.2d 360 (Sup.Ct. Fulton Co. 1994). Therefore, although the court is not aware of any reported cases as to the use of the CPLR to determine the filing of opposing or supporting papers, in general motion practice, this court should follow the time frame under CPLR 2214 and should deem all papers to have been timely filed in accord with that rule.
II Sufficiency of Information
Defendant contends the parking violation is defective due to the "cross-out" of one of the letters of the defendant's license plate number. The plate number listed in the boxes on the court information as 2-3-5-4-(crossed out N)-L-N. Based upon this error, the defendant argues the case should be dismissed.
Initially, the defendant defines the parking violation to be an appearance ticket under article 150 of the CPL. If this court were to interpret the parking violation as an appearance ticket, then the case could be dismissed for failure to file an accusatory instrument. People v. Gilberg, 166 Misc.2d 772 (App. Term 2nd Dept. 1995) app. den. 87 N.Y.2d 973 (Apps. 1996). An appearance ticket is a mere invitation to go to court and does not provide the court with jurisdiction. People v. Ashkinadze, 167 Misc.2d 80 (Crim.Ct. Kings Co. 1995). Such failure to file an accusatory instrument would have resulted in a lack of jurisdiction in the local court and the action would therefore be dismissed.Shirley v. Schulman, 78 N.Y.2d 915 (1991). However, in the case at bar, the parking ticket is, indeed, an accusatory instrument.
Mere labeling of an accusatory instrument, even if inaccurately, does not in and of itself result in a dismissal.People v. Causeway Const. Co., 164 Misc.2d 393 (Crim.Ct. Bronx Co. 1995) reversed 169 Misc.2d 70 (App. Term 1st Dept. 1996). It is a common mistake for law enforcement to misname legal process, such as referring to an appearance ticket erroneously "as a summons". People v. Jarmain, 93 Misc.2d 950 (N.Y. Crim. Ct 1978). However, in the case at bar the accusatory instrument is referred to as a "violation information" and not as an appearance ticket for improper parking. Thus the validity of the information is not governed by art. 150 of the CPL but instead is governed under art. 100 and 170 of the CPL It is under these later sections that the court must determine the legal sufficiency of the parking "violation information".
As a general rule, an infraction must conform with the requirements of CPL 100.15, to wit; the complainant must subscribe and verify his signature, based upon personal knowledge or upon information and belief. The accusatory part must designate the offenses and the factual part must allege facts of an evidentiary nature ((CPL 100.15 (1), (2), and (3))People v. Dumas, 68 N.Y.2d 729 (Ct. of Apps. 1986). As a secondary and equally important requirement, the information must contain allegations of fact that provide reasonable cause to believe the defendant committed the offense charged and that the charges are supported by non-hearsay allegations that establish each element. CPL 100.40 (1)(b)(c) People v. Hall, 48 N.Y.2d 927 (Ct. of Apps. 1979); People v. Cea, 141 Misc.2d 234 (N.Y. Crim. Ct. 1994). The burden of proof need only be a prima facie case, and need not be "beyond a reasonable doubt" People v. Henderson, 92 N.Y.2d 677 (Ct. of Apps. 1999). The allegations must not be conclusory. People v. Hoffman, 180 Misc.2d 382 (App. Term 2nd Dept. 1999). Failure to comply with any of the above requirements is considered a jurisdictional defect. and therefore the information should be dismissed as defective on its face. People v. Alejandro, 70 N.Y.2d 133 (Ct. of Apps. 1987).
A parking violation does not necessitate a supporting deposition.People v. Crist Trucking, 113 Misc.2d 136 (Mt. Vernon City. Ct. 1980). However, if a parking violation is to be filed as a valid information it must meet the guidelines of CPL or it will not be considered a valid accusatory instrument. People v. Weinberg, 146 Misc.2d 441 (App. Term 2nd Dept. 1990).
The Appellate Term recently set forth certain standards for parking violation information to be in conformity with C.P.L. 100. 15 Crim. Proc. and 100.40 Crim. Proc.. In People v. Gabbay, 175 Misc.2d 421 (App. Term 2nd Dept. 1997) app. den. 92 N.Y.2d 879 (Ct. of Apps. 1998) the Appellate Term held that a parking violation was an insufficient accusatory instrument which did not allege facts in a non-hearsay form, holding the tickets should added if "knowledge was personal or based upon information and belief". In addition, the Appellate Term also noted that verification was incomplete under C.P.L. 100. 30 Crim. Proc. and should not have read "affirmed under penalties of perjury" and should instead have read "statutes are punishable as a Class A misdemeanor pursuant to Penal Law 210.45 Penal". Lastly, the court held that it is the preferred practice to impose the requirements of Vehicle and Traffic Law 238 Veh. Traf.(2) upon parking violation. While an examination of the VTL 238 Veh. Traf.(2) appears to limit the requirements to Parking Violations Bureau, of Administrative Courts, the Appellate Term noted such requirements equally appropriate to those violations returnable in traditional courts as well. Therefore, although not absolutely mandatory, it is clear the requirements of VTL 238 Veh. Traf.(2) should be included as the better practice. The requirements of VTL 238 Veh. Traf.(2) are that all parking violations include (1) plate description, (2) plate type (passenger or commercial), (3) registration expiration date, (4) make or model and (5) body type.
In applying Gabbay to the case at bar, this court notes the Village Parking Violation Form contains all five (5) items required under VTL 238 Veh. Traf.(2), and also adds the requirement of motor vehicle inspection expiration date. The parking violation is set forth in non-hearsay form, indicating the complainant officer "personally observed the above violation." People v. Spiegel, 181 Misc.2d 48 (N.Y. Crim. Ct. 1999). A series of boxes are on the information listing the type of offense and the code sections of the violations. The complainant officer may check off the appropriate box. This "Check-off Box" approach to criminal procedure, has previously been approved by the Court of Appeals.People v. Hohmeyer, 70 N.Y.2d 41 (Ct. of Apps. 1988). Verification of the parking information "has been made and subject to punishment as a class "A" misdemeanor", and such verification was made properly by the code enforcement office, under CPL 100.30 People v. Holmes, 93 N.Y.2d 889 (1999). The ticket lists the court and the appropriate caption, "People of the State of New York vs. owner or operator of the vehicle described below" under CPL 100.15 (1). and there is no requirement to list defendant at the time of issuance of the ticket, as he is unknown and a presumption exists that it was the owner of the motor vehicle. People v. Castillo, 160 Misc.2d 876 (N.Y. Co. Crim.Ct. 1994).
Therefore, the court is satisfied that the parking violation form is a sufficient information under CPL 100.15 and 100. 40 Crim. Proc., as well as in satisfaction of the Appellate Term decision in Gabbay. We now turn to the next question, specifically does a "crossed out" and corrected license plate number notation render the information defective on its face.
Following a review of caselaw, no court decision has been found setting forth a standard to be followed under accusatory instruments that have been "marked up and corrected" in their initial form. Several courts have allowed amendments of curable defects when the accusatory instrument does not expressly comply with CPL 100.40 People v. Pacifico, 105 Misc.2d 396 (Crim.Ct. Queens Co., 1980). Courts have permitted amendments where the statutory reference and title of case were incorrect so long as no prosecution theory was changed and the defendant was not prejudiced on the merits. People v. Pena, 146 Misc.2d 767 (Crim.Ct. N.Y. Co. 1990). In a similar case, to the one at bar, a trial judge denied dismissal and granted permission to amend a traffic infraction where there was a typographical error in one digit of a license plate number, where the facts in the information were sufficient to sustain the change.People v. Kreismann, 162 Misc.2d 726 (Kensington Village Ct. Nassau Co. 1994). Since the Judges in the above cases denied dismissal and granted permission to amend the information, an ever stronger argument exists against dismissal where in the case at bar, where no need exists to amend the information, as it has been appropriately corrected before filing and its current accuracy is not in dispute.
The key to any proper information is that it will satisfy the trial court that the proof of facts alleged will establish the offense charged and that the defendant, in the interest of due process, will be provided with adequate notice of the nature of the charges against him. People v. Flushing Hospital and Medical Center, 122 Misc.2d 260 (Crim.Ct. Queens Co. 1983). Here, it is clear the information provides the defendant with notice of the charges and with the correct description and make body type of his automobile. Even considering the "cross-out". the code enforcement officer has provided the correct license plate of the defendant. He is therefore fully aware of the charges against him and the court is satisfied that the elements set forth meet the Due Process requirements mandated by both the Federal and New York Constitutions.
Accordingly, the motion of the defendant is denied.