Opinion
KP017HV4DW
08-16-2018
People of the State of New York, Plaintiff, v. Danielle Hakimian, Defendant.
The Law Office of David A. Adhami, Of Counsel For the Defendant Benjamin S. Kaplan of the law firm of McLaughlin & Stern, LLP, attorneys for the People for matters in the Justice Court of the Village of Kings Point, NY
The Law Office of David A. Adhami, Of Counsel For the Defendant Benjamin S. Kaplan of the law firm of McLaughlin & Stern, LLP, attorneys for the People for matters in the Justice Court of the Village of Kings Point, NY Gary C. Granoff, J.
This matter comes before the Court by Motion of Defendant, dated December 14, 2017, seeking the dismissal of the above simplified traffic information on the grounds that the Defendant was provided with a defective supporting deposition that did not comply with the statutory requirements set forth in C.P.L 100.20, 100.25, 100.40, 170.30 and 170.35.
An electronic ticket and an electronic supporting deposition were issued at the traffic stop on October 18, 2017 by the police officer who made the traffic stop. After the defendant received the electronic supporting deposition at the traffic stop on October 18, 2017 defense counsel, Mr. Adhami, on behalf of defendant requested another supporting deposition by letter dated November 13, 2017 received by fax by the Court on November 14, 2017. Defendant's Motion to Dismiss further claims that no further supporting deposition was received by defendant within the statutory time limits and therefore this case should be dismissed.
The records of this court show that the defendant through his attorney, entered a Notice of Appearance and a plea of Not Guilty for his client by letter dated November 13, 2018 sent by fax to the court and received by the court on November 14, 2018. As indicated above, the records of this court show that an electronic supporting deposition was delivered to the defendant on October 18, 2017 at the time of the issuance of the traffic summons for the alleged violation, and that the police officer who issued the summons sent another copy of the Supporting Deposition dated October 18, 2017 to the defendant on November 28, 2017. There is also an Affidavit of Service in the Court's file for the forwarding and mailing date of a copy of the original Supporting Deposition that was mailed to the defendant on November 28, 2017.
Thereafter on December 14, 2017 counsel for the defendant filed a Notice of Motion to Dismiss for Facial Insufficiency. The People thereafter filed an Affirmation in Opposition dated January 22, 2018 with the Court.
The Court has now had an opportunity to review the Simplified Information for the electronic traffic ticket No. KP017HV4DW, the electronic supporting deposition issued at the traffic stop to the defendant dated October 18, 2017, and the documentation concerning the mailing of a second copy of the electronic supporting deposition forwarded on November 28, 2017 by the police officer, the Notice of Motion to Dismiss by defendant's counsel, and the People's Affirmation in Opposition. The Court has also reviewed the relevant statutes and case law affecting it's decision on the Motion.
Defendant's counsel argues in items 9 and 10 of his Motion that no additional supporting deposition had been received as requested by his letter dated November 13, 2017, however, the Court's file shows that a second copy of the electronic supporting deposition was served by the police officer on November 28, 2017 and there is an Affidavit of Service in the court's file concerning the due mailing of the second copy of the original supporting deposition dated October 18, 2017. As such, the Court finds that the second supporting deposition was duly served on a timely basis voluntarily and also that the second supporting deposition was not necessary to be served as the police officer initially provided defendant at the time of the issuance of the traffic summons, an electronic supporting deposition dated October 18, 2018. As such, the Court finds that the serving of the second supporting deposition by the police officer was voluntary and not mandatory. "Where a supporting deposition is voluntarily supplied within the time during which a defendant, pursuant to NY Crim. Proc. Law Section 100.25(2), may demand a supporting deposition, the voluntary providing of that supporting deposition moots the defendant's right to demand one." People v. Smith, 163 Misc 2d 353, 360 (Justice Court, Town of Perinton, October 3, 1994). See also People v Key, 87 Misc 2d 262, 266 (App Term 2d Dep't 1976) ("the deposition was voluntarily provided by the People within the permissible time for defendant to demand same, and this in effect mooted defendant's right to make such a demand"). See also this Court's decision in People v Stevens, 58 Misc 3d 393, 2017 WL 5762630 (Justice Court, Village of Kings Point, October 24, 2017).See also, People v. Corletta, 12 Misc.3rd 666 (2006), 814 NY S. 2d 514, 2006 NY Slip Op. 26150 where the defendant formally requested in writing a supporting deposition nine (9) days after the uniform traffic ticket was issued, however the defendant had received an "e-supporting deposition" at the time of the issuance of the "e-ticket" uniform traffic ticket, the court held that since the original supporting deposition was not found to be defective, the defendant was in timely receipt of a supporting deposition pursuant to CPL 100.25(2). In the instant case, as the police officer provided the electronic supporting deposition on October 18, 2017, at the scene of the police stop, the defendant's right to demand an additional supporting deposition became moot.
Defendant's counsel also argues that the supporting deposition issued with the ticket was not sufficient and therefore was defective. However, Defendant's counsel does not argue any specific reasons why the supporting deposition issued was not sufficient and therefore was defective. There is no argument by Defendant's counsel as to specific reasons why the supporting deposition was lacking in specific details alleging the failure to set forth the elements of the offense. With regard to defendant's counsel's arguments that the supporting deposition that was supplied was insufficient, there is no requirement under New York law that a simplified traffic information be accompanied by a supporting deposition at all, but if one is furnished, it should provide reasonable cause to believe that the defendant committed the offense or offenses charged. People v Key, 45 NY2d 111 (1978) (where the absence of factual allegations in supporting deposition is waivable). What is statutorily required pursuant to Criminal Procedure Law ("CPL") Section 100.25(2) is reasonable cause to believe that the defendant committed the offense charged. People v. Hohmeyer, 70 NY2d 41 (1987) (supporting deposition sufficient where officer indicates facts and circumstances by checking boxes corresponding to the appropriate factual statement). Pursuant to CPL Section 100.25(2) a valid supporting deposition is a written instrument "containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe the defendant committed the offense charged."
After a careful review of the electronic supporting deposition voluntarily served at the police stop, dated October 18, 2017 and the same copy of the electronic deposition dated October 18, 2017 served voluntarily on November 28, 2018, the Court finds that both supporting depositions were more than sufficient, and were subscribed and verified by the police officer, and were based upon his "direct observation" and contained sufficient factual allegations to provide a reasonable likelihood that the defendant violated Section 1180(d) of the Vehicle and Traffic Code. The supporting depositions described the defendant's operation of the motor vehicle described in the summons, the license plate number, that the defendant was traveling northbound on East Shore Road in the Village of Kings Point, at 70 mph in a 30 mph zone and that the speed was determined by both visual observation and by a laser device. For speeding violations, a supporting deposition that contains "a statement of street and village, as well as the speed and the direction defendant was traveling provides sufficient detail." People v Worrell, 2005 NY. Misc. LEXIS 2911 (Just. Ct. Muttontown, Dec. 21, 2005). The Court finds that the level of detail in the supporting deposition provided "reasonable cause" to believe that the defendant was in violation of Section 1180(d) of the VTL. All the supporting deposition need state are facts from which it can be reasonably inferred that a violation was committed. See also this Court's decision in People v Nassi(Aug. 23, 2013) (holding on facts similar to the present case that the supporting deposition satisfied CPL Section 100.25).
The Court also finds that the defendant's counsel's argument that the supporting deposition must supplement the summons is incorrect. Where a traffic ticket itself satisfies the supporting deposition content requirement of CPL Section 100.25(2), the supporting deposition need not supplement the ticket. See People v. Trunk, 2007 NY Misc. LEXIS 7881 (Just. Ct. Port Washington Dec. 21, 2007) cited by McKinney's Practice Commentaries, VTL Section 1180, pp. 137-39 (2011). See also People v. Campbell, cited by McKinney's Practice Commentaries, Pocket Part, VTL Section 1180 pp.55 (2018).
Finally, defendant's counsel's arguments in his Motion to Dismiss that the People turn over the "discovery as demanded in the instant demand for a bill of particulars and discovery" is inapplicable as there is no evidence that any bill of particulars or discovery had been requested by the defendant prior to making the Motion to Dismiss, and in addition, the defendant is not entitled to a bill of particulars and discovery for a simplified information charging a traffic infraction. See, e.g., People v. Cohen, 131 Misc 2d 898 (City Court, City of Yonkers, 1986).
Based upon a review of the law, the case law cited, and based upon the information set forth in the Summons and the two supporting depositions supplied by the police officer to the defendant in this case, the Defendant's Motion to Dismiss is denied.
Summons No. KP017HV4DW, will be placed on the next available Conference Calendar or Trial Calendar if the defendant has already had a Conference .
SO ORDERED Dated: August 16, 2018 Kings Point, NY _____________________________________ Gary C. Granoff Village Justice