Opinion
No. 2011NA004560.
2011-11-17
The PEOPLE of the State of New York, Plaintiff(s) v. Raymond M. BUCKRIDGE, Defendant(s).
Kathleen Rice, District Attorney, Mineola. Sharifov & Russell, LLP, Hempstead.
Kathleen Rice, District Attorney, Mineola. Sharifov & Russell, LLP, Hempstead.
SUSAN T. KLUEWER, J.
Defendant's motion for an order dismissing the “misdemeanor information” as multiplicitous, and dismissing a simplified traffic information as facially defective, is denied. The simplified traffic information that is in the court file is deemed a nullity.
Defendant is accused by misdemeanor complaint, to which three supporting depositions are annexed, of leaving the scene of an automobile accident involving personal injury without reporting ( seeVehicle and Traffic Law § 600[2] ). The incident giving rise to the charge is alleged to have occurred on February 19, 2011 at about 6:35 p.m. at “Peninsula Blvd/Ocean Avenue” in Lynbrook, New York. The complainant ( seeCPL 100.15[1] ), Police Officer Salvatore Sedita, swore to the allegations he makes ( see CPL 100 .30[1] [c] ) on February 20, 2011. Notations on the misdemeanor complaint indicate that Defendant was actually arrested on February 19, 2011 at “19:12,” that he was in custody until “20:40” on February 19, 2011, that he posted “police bail” of $100, and that he was given an appearance ticket directing him to appear in this court on March 3, 2011 ( seeCPL 150.40). The misdemeanor complaint and annexed supporting depositions bear the court clerk's “time stamp” indicating that the clerk accepted the misdemeanor complaint and supporting depositions for filing on February 25, 2011 at “2:46.” Among the other documents included in the court file are two copies of an electronically issued simplified traffic information, one of them bearing the stamp “original.” By it, Defendant is accused of violating Vehicle and Traffic Law § 600(2) on account of an incident that is alleged to have occurred on February 19, 2011 at “Peninsula Blvd/Ocean Ave” in Lynbrook, New York, but at “10:47” p.m. Officer Sedita is the issuing officer and it appears that he made this document on February 19, 2011. Although this document is in the court file, neither copy bears the clerk's “time stamp,” and there is no formal indication of how or when it came to be included in the court file. On March 3, 2011, Defendant appeared as directed. On that date, the court (Reilly, J.) arraigned Defendant on one count of leaving the scene of an accident involving personal injury without reporting, continued police bail, and adjourned the case to March 31, 2011. On March 16, 2011, Defendant, through newly appearing counsel, served a written demand for a supporting deposition pursuant to CPL 100.25. The People have served and filed “VDFs.”
Defendant now moves for the above-noted relief. He asserts that he is charged by simplified traffic information with having violated Vehicle and Traffic Law § 600(2) on February 19, 2011, that when he appeared at arraignment on March 3, 2011, he was “provided with a second accusatory instrument,” that he has demanded a supporting deposition concerning the count interposed by way of simplified traffic information, that he has received no supporting deposition in response, that is unlawful to prosecute him twice for the same offense, that since the simplified traffic information was created first, the “information” must be dismissed as multiplicitous, and that, because he was not served with a supporting deposition in response to his demand, the simplified traffic information must be dismissed as facially defective.
The People in opposition assert without explanation that both the simplified traffic information and the “long form information” with supporting depositions “were filed” with the court on February 25, 2011. Noting that Defendant was arraigned on only one count, they maintain that the accusatory instrument he was arraigned on is the “long-form information,” but, in order to “further clarify the issue,” they suggest that Defendant be “re-arraigned” on the “long form information” and that what they call “count one” be dismissed.
Defendant in reply asserts that the People have no basis for claiming he was arraigned on the “misdemeanor information,” and that, because the simplified traffic information “undeniably existed first,” the simplified traffic information is the accusatory instrument that controls. He adds the new argument that, if the court is not satisfied that the “misdemeanor information” must be dismissed as multiplicitous, then it must be dismissed as an improper and unauthorized attempt to supersede a simplified traffic information. He also repeats his arguments concerning dismissal of the simplified traffic information as facially defective.
I cannot agree with Defendant that the simplified traffic information takes precedence over the misdemeanor complaint and supporting depositions simply because it appears that Officer Sedita created it before he attested to the factual part of the misdemeanor complaint. Indeed, what gives an accusatory instrument effect is not its creation, but its filing ( seeCPL 1.20[16], [17] ). Although the simplified traffic information is “in” the court file, since it bears no “time stamp,” the clerk did not officially accept it for filing, a fact that is confirmed by the clerk's markings on the court file demonstrating that only one count of Vehicle and Traffic Law § 600(2) is pending. Thus, the premise Defendant advances for dismissal of what both sides refer to as an “information”—that it is “multiplicitous”—simply does not exist, mandating denial of his request therefor. Moreover, given that the clerk officially accepted only the more formal accusatory instrument for filing, and given Defendant's concession that the clerk caused that more formal accusatory instrument to be handed to him at arraignment, it is virtually impossible that it was nonetheless the simplified traffic information that the clerk delivered to the court for the purpose of conducting the arraignment. Since it is thus clear that Defendant has not been arraigned on the simplified traffic information, I cannot entertain a motion to dismiss it ( seeCPL 170.30[1], see alsoCPL 1.20[9]; cf People v. Fysekis, 164 Misc.2d 627, 625 N.Y.S.2d 861 [Crim Ct, Bronx County, 1995, Enten, J.] ). Under the circumstances, I simply deem it a nullity.
So Ordered.