Opinion
01905-04.
Decided August 23, 2004.
Michael Green, Esq. District Attorney, Aaron J. Sperano, Esq. Assistant District Attorney.
Clark J. Zimmermann, Jr., Esq., Attorney for Defendant.
The defendant was charged on January 22, 2004 at 12:33 A.M. with Speed in Zone, Vehicle and Traffic Law Section, 1180(D) and Failure to Exhibit Drivers License, Vehicle and Traffic Law Section 507(2) and Aggravated Unlicensed Operation in the 3rd Degree, Vehicle and Traffic Law Section 511(1). These offenses allegedly occurred on Route 104 by Salt Road in the Town of Webster. Webster Police Officer Parsons, after stopping the defendant for speeding, allegedly going 82 mph in a 55 mph zone, asked the defendant to show her his driver's license. The officer alleges that the defendant was unable exhibit a valid license. Presumably the officer then checked the defendant's license status via the computer in her police vehicle.
This resulted in the charge of Aggravated Unlicensed Operation 3rd Degree. Officer Parson's Supporting Deposition, sworn to on February 15, 2004, states that ". . . the defendant did possess a REVOKED New York State driver (sic) license. The reason for the revocation is REVOKED PROBATIONARY LICENSE. This revocation took effect on 12-31-01 and as of 01-22-04, this revocation has not been cleared." The officer indicated further in her supporting deposition that the source of her information was a "Department of Motor Vehicles teletype."
The defendant was arraigned on February 10, 2004. At that time the matter was adjourned for purposes of discovery. The case was eventually set down for argument of motions on May 5, 2004. The defense moved to dismiss the Simplified Traffic Information, charging the defendant with Aggravated Unlicensed Operation in the 3rd Degree, VTL 511(1), arguing that said accusatory instrument was defective on its face. The defense contends that the indication on said supporting deposition, that the source of the officer's information being a Department of Motor Vehicle teletype, was insufficient, as being hearsay and against the best evidence rule, unless the "teletype" itself was attached to the supporting deposition.
Issues Presented
Does failure to attach a DMV printout to a supporting deposition violate the "best evidence rule"?
Is a supporting deposition, which is provided with a simplified traffic information, insufficient if it refers to the results of a computer search of defendant's license status, without attaching a hard copy of said search to the supporting deposition?
Legal Analysis
The offense in question is Aggravated Unlicensed Operation in the 3rd Degree, to wit:
VTL 511(1)(a), which states as follows:
"1. Aggravated unlicensed operation of a motor vehicle in the third degree.
(a) A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree when such person operates a motor vehicle upon a public highway while knowing or having reason to know that such person's license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner."
Criminal Procedure Law Section 100.20 states that:
"A supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein."
The defense contends that the sworn statement of the officer describing her observation of the computer records of the Department of Motor Vehicles does not satisfy C.P.L. 100.20, because her statement is hearsay and because it violates the best evidence rule.
A. Best Evidence Rule.
I will deal with the issue of the best evidence rule first. The "best evidence rule" is a rule which prohibits the entry into evidence at trial of copies of documents, instead of the original thereof. It is not a rule of pleading under the either the C.P.L.R. or the Criminal Procedure Law.
Therefore, the defense motion to dismiss the accusatory instrument herein, based on the "best evidence rule", pursuant to C.P.L. 170.30 (1)(a) or 170.35(1)(a) is hereby denied.
B. Sufficiency of Simplified Traffic Information.
The defendant further contends that the supporting deposition is not "evidentiary" as set out in C.P.L 100.20, because same is based on hearsay. The defense argument stems from the fact that the arresting officer indicated that the ". . . the source of complainants' information and belief, being a Department of Motor Vehicle teletype", and same was not attached to the supporting deposition. However, C.P.L. 100.20 does not hold the police to such a high standard when making an accusation. The supporting deposition is sufficient if the allegations made therein are "based either upon personal knowledge or upon information and belief". At the very least, the officer's statement that she viewed the "teletype" of the Department of Motor Vehicles and same indicated that the defendant's driving privileges were revoked, amounts to an allegation "upon information and belief".
The next issue is whether or not the accusatory instrument as supplemented by the supporting deposition "support or tend to support the charge or charges contained therein" as required by C.P.L. 100.20. Such language suggests a "reasonable cause" standard in determining the sufficiency of accusatory instruments as defined in C.P.L. 70.10(2). In People v. Quarles, (1996) 168 Misc.2d 638, 644, 639 N.Y.S.2d 661,666, the court stated ". . . the appropriate standard of review for facial sufficiency of the simplified information charging aggravated unlicensed operation in the third degree is 'reasonable cause'." The Criminal Procedure Law sets out different standards for informations and simplified informations. See C.P.L. 100.40(1) and C.P.L.100.40(2). The Criminal Procedure Law sets out a lower standard of proof, when a misdemeanor is charged by a simplified information. Presumably, if it had deemed same necessary, the legislature would have required a higher standard in cases, wherein individuals are charged with a misdemeanor by means of a simplified information instead of an information. If the police had charged the defendant by means of an "'information'" as same is defined by C.P.L. 1.20(4) instead of a "'simplified information'" as defined by C.P.L.120(5)(a), the higher standard of "legally sufficient evidence" as defined by C.P.L. 70.10(1) and referred to by C.P.L. 100.40(1) (c) would be required. Instead only "reasonable cause" as defined by C.P.L. 70.10(2) is required by virtue of being served with a simplified traffic information.
C.P.L. 70.10(2) states as follows: "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay.
Criminal Procedure Law Section 100.40(1) and (2) state as follows: 1. An information, or a count thereof, is sufficient on its face when: (a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. 2. A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face.
C.P.L. 70.10(1) states as follows: "Legally sufficient evidence" means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent.
The defendant was served with appearance ticket as defined by C.P.L. 150.10. "An appearance ticket, however, is not an accusatory instrument, and its filing does not give a criminal court jurisdiction over the defendant. Section 150.50 of the CPL requires that prior to the return date of an appearance ticket a legally sufficient information or misdemeanor complaint shall be filed." People v. Weinberg, (1990) 146 Misc.2d 441, 558 N.Y.S.2d 439. The issuance of an appearance ticket benefits the defendant, in that the defendant is not immediately brought before a magistrate for arraignment, but is given the chance to seek the assistance of counsel at an arraignment at a date and time set out in the appearance ticket. Certainly, in the case of a misdemeanor, the defendant can refuse to be prosecuted by a complaint, which is is filed with the local court in accordance with C.P.L. 150.50(1). Pursuant to C.P.L. 170.65, the defendant is not required to enter a plea to a complaint, but can demand that the complaint be converted to an information. (See C.P.L 1.20(4) for the definition of a "Information", and C.P.L. 1.20(7) for the definition of a "Misdemeanor complaint".
C.P.L. 150.10(1) defines an appearance ticket as follows: An appearance ticket is a written notice issued and subscribed by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue the same, directing a designated person to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense. A notice conforming to such definition constitutes an appearance ticket regardless of whether it is referred to in some other provision of law as a summons or by any other name or title.
In any event, based on the fact that the standard the court must apply to the facts herein is the standard set out by C.P.L. 70.10(2), which is the lower standard of "reasonable cause" to believe that the defendant committed the offense charged, it would appear that the people sustained their burden of proof in this matter. The evidence and information set out in the documents filed with the court seem to be reliable, and the disclosed facts and circumstances are collectively of such weight and persuasiveness, that they would convince a person of ordinary intelligence, judgement and experience that it is reasonably likely that the offense in question was committed and that the defendant committed it. As a result, the motion to dismiss the simplified traffic informations charging the defendant with Aggravated Unlicensed Operation in the Third Degree, as being insufficient, pursuant to C.P.L. 170.35 and C.P.L. 170.30, is hereby denied. The matter is restored to the calender for disposition on September 15, 2004 at 1:00 P.M. This constitutes the decision and order of this court.