Opinion
2014SU024340
10-23-2015
People of the State of New York, v. Kristyna M. Connors, Defendant
For the Defendant: Matthew J. Hereth Suffolk County Legal Aid Society For the People: Angelo J. Macaluso for Thomas J. Spota, District Attorney of Suffolk County
For the Defendant: Matthew J. Hereth
Suffolk County Legal Aid Society
For the People: Angelo J. Macaluso
for Thomas J. Spota, District Attorney of Suffolk County
Karen M. Wilutis, J.
The defendant is charged with driving while intoxicated (V & TL §§1192(2), (3)) and moves for omnibus relief.
Preliminarily, the Court notes that the file contains two long-form misdemeanor informations, one charging a violation of V & TL §1192(2) and one charging a violation of V & TL §1192(3). In addition, the file also contains two documents captioned "Simplified Information/Certificate Concerning Violation of Law Relating to Vehicles", which correspond to the above-noted charges. All of the documents are dated June 6, 2014, the date of the incident herein, and were completed by New York State Trooper Joseph W. Kolm.
The defendant initially argues that she was served with simplified informations, provides documentary evidence that a timely supporting deposition demand was filed pursuant to CPL 100.25(2), avers that no supporting depositions were served in response to said demand and concludes that the simplified informations must therefore be dismissed as insufficient pursuant to CPL 100.40(2).
While acknowledging the presence of the long-form instruments, the defendant argues that those documents merely represent an impermissible attempt to supersede the simplified informations. ( See People v. Baron, 107 Misc 2d 59 [App Term 2nd Dept, 9th & 10th Jud Dists 1980] ["a simplified traffic information can only be amended so as to cure amendable defects and cannot . . . be superseded by an information"]; see also People v. Donnelly, 30 Misc 3d 136(A) [App Term 2nd Dept, 9th & 10th Jud Dists 2010], lv app den 16 NY3d 742 [2011]). Although the fundamental principles underlying those arguments are valid, it is the opinion of this Court that the defendant's argument in this matter is unavailing. The Court finds that all of the documents herein were filed contemporaneously, that the long-form documents do not constitute superseding informations and that the defendant is being prosecuted via misdemeanor informations.
The commencement of a criminal action occurs "by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed" (see CPL §1.20[17]). The Court of Appeals has interpreted this to mean that "there can only be one criminal action for each set of criminal charges brought against a particular defendant" (see People v. Lomax, 50 NY2d 351, 356 [1980]). The Court further reasoned that "obviously, if there can be only one criminal action for any given set of charges, there also can be only one date which marks the commencement' of the action, the date which the first accusatory paper is filed" (see Lomax, supra at 356). Contrary to People v. Donnelly, where the defendant was charged by way of long-form informations long after appearing in Court in response to simplified traffic informations, this Court finds that the long-form misdemeanor informations here were contemporaneously filed with the simplified traffic informations and were not filed as superseding misdemeanor informations.
The Court's remarks in that matter concerned CPL 30.30 issues. However, the core statements are appropriate here when two sets of accusatory instruments have been filed contemporaneously for the same set of charges.
In arriving at such conclusions, the Court notes that the documents in question were completed by the same Trooper on the same date. Additionally, the Court has reviewed the transcript of the defendant's arraignment on June 16, 2014 and finds that it must be concluded that the charging documents that were reviewed at arraignment on the driving while intoxicated counts must have been the long-form misdemeanor informations. The arraignment Court specifically "reviewed the accusatory instruments", found that "[t]hey [we]re sufficient pursuant to Criminal Procedure Law 100.40" and, noting a blood alcohol test reading of .14 BAC, suspended the defendant's driver's license pursuant to V & TL §1193(2)(e)(7). The arraignment Court would not have had any factual allegations from which to draw such conclusions from the faces of the purported simplified informations. Consequently, it would be untenable for any simplified informations charging violations of V & TL §§1192(2) and 1192(3) to remain before this Court and they are deemed dismissed as specious and duplicative. The defendant's arguments for dismissal based upon simplified traffic informations are therefore denied as moot.
The defendant next moves to dismiss the misdemeanor informations on sufficiency grounds. The informations are each stated to be based both upon the "direct knowledge" of Trooper Kolm and upon information and belief, with the source for same being the supporting deposition of Laine A. Brancato. In said deposition, the deponent details the circumstances of a motor vehicle accident involving "a dark colored Ford" operating at "a high rate of speed." With regard to the identity of the driver of that vehicle, however, the deponent states that "the female operator . . . was identified to me as Kristyna A. Connors." [emphasis added] This identification of the driver is hearsay and the information therefore fails to fails to meet the requirement that it provide non-hearsay factual allegations establishing every element of the offense charged and the defendant's commission thereof (see CPL 100.40, 100.15) and must be dismissed.
Accordingly, by reason of the foregoing, the defendant's motion to dismiss the within misdemeanor informations on sufficiency grounds is granted. Upon issuance of this order, the Court shall furnish the defendant with notice pursuant to 22 NYCRR §200.40. The remainder of the defendant's omnibus motion is denied as moot. J.D.C.