Opinion
No. 2015–2051 S CR.
05-23-2017
The PEOPLE of the State of New York, Respondent, v. Matthew CONCEPCION, Appellant.
Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Paul Senzer, J .H.O.), rendered August 17, 2015. The judgment convicted defendant, after a nonjury trial, of speeding. The appeal from the judgment of conviction brings up for review the denial on August 17, 2015 of defendant's motion to dismiss the accusatory instrument.
ORDERED that the judgment of conviction is reversed, on the law, the order denying defendant's motion to dismiss the accusatory instrument is vacated, defendant's motion is granted, and the fine and surcharge, if paid, are remitted.
On May 7, 2015, defendant was issued a uniform traffic ticket charging him with speeding in violation of Vehicle and Traffic Law § 1180(b). The ticket directed defendant to, among other things, "return [the ticket] by mail before, or in person on" July 7, 2015 at 2:00 p.m. By letter dated May 20, 2015, the Suffolk County Traffic and Parking Violations Agency of the District Court informed defendant that it had received his plea of not guilty, and that the case had been scheduled for a conference on June 10, 2015. Thereafter, defendant moved to dismiss the simplified traffic information, pursuant to CPL 170.30(1)(a) and 170.35(1)(a), on the ground that his request for a supporting deposition had not been met. In an affirmation in support of the motion, defendant's attorney stated that defendant had mailed the ticket to the District Court and that included on the ticket were defendant's not guilty plea and his request for a supporting deposition. The ticket was marked received by the District Court on May 15, 2015. The People opposed defendant's motion. The District Court denied defendant's motion, finding that defendant had failed to show that he had timely requested a supporting deposition since he did not provide adequate proof of service. Following a nonjury trial, defendant was convicted of the charge.
When a defendant is charged in a simplified traffic information with a Vehicle and Traffic Law violation and makes a timely request for a supporting deposition, he is entitled, as of right, to receive a "supporting deposition of the complainant police officer ... containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged" ( CPL 100.25[2] ; see also People v. Key, 45 N.Y.2d 111, 116 [1978] ) within 30 days of the court's receipt of his request, or at least five days before trial (see CPL 100.25[2] ). The failure to timely serve and file a supporting deposition renders the simplified traffic information insufficient on its face (see CPL 100.40[2] ; People v. Aucello, 146 Misc.2d 417 [App Term, 2d Dept, 9th & 10th Jud Dists [1990] ) and subjects it to dismissal upon motion (see CPL 170.30[1][a] ; 170.35[1]; People v. Nuccio, 78 N.Y.2d 102, 104 [1991] ; People v. Fattizzi, 98 Misc.2d 288 [App Term, 2d Dept, 9th & 10th Jud Dists 1978] ).
Since the uniform traffic ticket defendant received in the case at bar directed defendant to appear in the District Court on July 7, 2015, it served as an "appearance ticket" under CPL 150.10. Part "B" on the ticket's reverse side instructed defendant on how to enter a plea of not guilty by mail and included a notice, mandated by CPL 150.10(2) and 100.25(4), informing defendant that he was entitled to a supporting deposition if one was requested within 30 days of the date he was directed to appear in court as set forth on the appearance ticket. Part "B" also asked defendant to check a box to indicate whether or not he was requesting a supporting deposition. The record establishes that, on May 15, 2015, the District Court received defendant's ticket, bearing his not guilty plea, his address, his request for a supporting deposition, and his signature. It is uncontroverted that a supporting deposition was never served upon defendant or filed with the court. In view of the foregoing, defendant's motion to dismiss the accusatory instrument should have been granted.
Accordingly, the judgment of conviction is reversed, the order denying defendant's motion to dismiss the accusatory instrument is vacated, and defendant's motion is granted.
IANNACCI, J.P., TOLBERT and BRANDS, JJ., concur.