Opinion
2020-938 W CR
11-18-2021
The PEOPLE of the State of New York, Respondent, v. Alan KACHALSKY, Appellant.
Alan Kachalsky, appellant pro se. Max DiFabio, for respondent (no brief filed).
Alan Kachalsky, appellant pro se.
Max DiFabio, for respondent (no brief filed).
PRESENT: TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON, HELEN VOUTSINAS, JJ.
ORDERED that the judgments of conviction are affirmed.
In a simplified traffic information, defendant was charged with riding a motorcycle between lanes ( Vehicle and Traffic Law § 1252 [c] ). It provides that, on December 18, 2019 at 2 p.m., defendant violated Vehicle and Traffic Law § 1252 (c) in the Village of Port Chester, at "S/W BOSTON RD FROM BOA LOT." In a separate simplified traffic information, defendant was charged with disobeying a traffic control device ( Vehicle and Traffic Law § 1110 [a] ). This latter simplified information indicates that a supporting deposition was provided to defendant at the scene. The supporting deposition set forth that, on December 18, 2019 at 2 p.m., in the Village of Port Chester, "S/W BOSTON RD FROM BOA LOT," the complaining officer "DID OBSERVE SAID VEH TRAV S/W WHICH DISOBEYED THE CONSPICUOUSLY POSTED NO LEFT TURN SIGN. SUBJECT THEN CON'T S/W DRIVING BETWEEN LANES OF TRAFFIC."
Defendant moved to dismiss the simplified traffic informations, arguing that the supporting deposition failed to contain factual allegations that provided reasonable cause to believe he committed the traffic infractions charged therein. It does not appear from the record that the Justice Court determined the motion prior to proceeding with the trial. Following a nonjury trial, defendant was convicted of the aforementioned charges, and sentences were imposed. On appeal, defendant contends that the supporting deposition furnished to him failed to provide reasonable cause to believe that defendant committed either offense.
A defendant charged with a traffic infraction can be prosecuted by a jurisdictionally sufficient simplified traffic information alone, and, thus, without any allegations providing reasonable cause (see People v Epakchi , 37 NY3d 39 [2021] ). A simplified traffic information is sufficient if it substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25 [1] ; 100.40 [2]; People v Anand , 65 Misc 3d 151[A], 2019 NY Slip Op 51875[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Ferro , 22 Misc 3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). However, where a defendant requests a supporting deposition, the officer must serve defendant with one which must set forth allegations of fact providing reasonable cause to believe that the defendant committed the offense charged (see CPL 100.25 [2] ). The officer's failure to provide such a supporting deposition constitutes a violation of CPL 100.25 (2), and renders the simplified traffic information insufficient on its face (see CPL 100.40 [2] ) and subject to a motion to dismiss. However, such failure is not a jurisdictional defect and can be waived, as the prosecution can proceed to trial upon the simplified traffic informations alone (see People v Beattie , 80 NY2d 840 [1992] ; People v Key , 45 NY2d 111, 116-117 [1978] ; People v Vogt , 70 Misc 3d 30, 31-32 [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; People v Patrizio , 62 Misc 3d 130[A], 2018 NY Slip Op 51901[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Hakim , 60 Misc 3d 137[A], 2018 NY Slip Op 51112[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
Here, a supporting deposition was provided to defendant and defendant moved to dismiss the simplified traffic informations on facial insufficiency grounds. However, as defendant proceeded to trial before the Justice Court determined his motion to dismiss the simplified informations, his challenge to the sufficiency of the supporting deposition is deemed waived (see People v Vogt , 70 Misc 3d at 31-32 ; People v Hill , 5 Misc 3d 134[A], 2016 NY Slip Op 50543[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Thus, the matter could proceed to trial on the jurisdictionally sufficient simplified traffic informations (see People v Beattie , 80 NY2d 840 ).
Accordingly, the judgments of conviction are affirmed.
RUDERMAN, P.J., EMERSON and VOUTSINAS, JJ., concur.