Opinion
08-1049
04-29-2013
The People of the State of New York, Plaintiff, v. Christopher Ross, Defendant.
Christine E. Cervasio, Esq. Office of the District Attorney of Westchester County Christopher Ross Defendant, Pro-Se
Christine E. Cervasio, Esq.
Office of the District Attorney of Westchester County
Christopher Ross Defendant, Pro-Se
Susan I. Kettner, J.
Papers Read on This Motion:
Notice of Motion to Vacate Judgment of Conviction
and Affirmation Annexed 1-2, 3
Affirmation in Opposition 4
Defendant moves pursuant to CPL 440.10 to vacate the judgment of conviction of Driving Without a License, a violation of Vehicle and Traffic Law §509, as a result of his guilty plea before this Court (Rice, J.) on January 31, 2013.Defendant further moves for remittal of the bail which was forfeited. Defendant cites CPL §100.25(2) in arguing that the Court lacked jurisdiction because the defendant was never served with a supporting deposition. The People oppose the motion.
BACKGROUND
On March 22, 2008, defendant was issued three tickets for the following: Speeding, in violation of VTL§1180-a (an infraction); Driving Without a License, in violation of VTL§509 (an infraction); and Aggravated Unlicensed Operation of a Motor Vehicle, in violation of VTL§511(2)(a)(an unclassified misdemeanor). Each ticket set forth a return date of May 30, 2008 for defendant to appear in the City Court of New Rochelle.
On May 30, 2008, the People filed a supporting deposition for the Aggravated Unlicensed Operation charge against defendant. However, the defendant failed to appear in court on said return date for arraignment and an arrest warrant was issued.
Subsequently, the arrest warrant was executed on October 11, 2012. When the defendant was produced on October 11, 2012 without an attorney, the Court appointed assigned counsel to represent the defendant. At arraignment, the defendant's assigned counsel requested a supporting deposition. The People then served the defendant with a supporting deposition, which had originally been filed with the Court, and same was acknowledged by defendant's assigned counsel. The People, again, declared readiness. Defendant requested an all purpose adjournment to October 18, 2012 and posted bail.
On October 18, 2012, defendant appeared with his assigned counsel and requested an all purpose adjournment to November 15, 2012. Then on November 15, 2012, defendant appeared again with his attorney and requested another all purpose adjournment to November 29, 2012 for a possible disposition. Defendant, however, failed to appear on November 29, 2012 and a bench warrant was issued resulting in bail forfeiture of $1,500.
Subsequently, the warrant was executed on January 31, 2013 and the defendant was produced. On that date, defendant entered a plea of guilty to the infraction of Driving Without a License, a violation of VTL §509, in full satisfaction of all charges and was sentenced to "time served" and an $80 surcharge, which was converted to a civil judgment.
Discussion
Defendant's claim that he was not furnished with a supporting deposition was a matter addressed at arraignment. As such, it is record based and must be included in a plenary appeal which defendant failed to do. As pointed out by the People, the raison d'etre of a CPL 440.10 motion is "to inform the court of facts not reflected in the record and unknown at the time of the judgment which, as a matter of law, would undermine the basis of the judgment." People v Donovan, 107 AD2d 422, 433 [2d Dept 1985] citing People v Crimmins, 38 NY2d 407 [1975].
The Court's records clearly shows that the defendant was indeed served with a supporting deposition during his arraignment on October 11, 2012.
Even assuming that defendant's claim was not record based, his motion would fail on the merits.
When defendant is charged by means of a simplified traffic information, the People are only required to serve and file a supporting deposition where defendant has made a timely request. CPL §100.25 provides:
A defendant charged by a simplified information is, upon a timely request entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, 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. To be timely, such a request must, except as otherwise provided herein and in subdivision three of this section, be made before the entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto . . . (Emphasis added)
Defendant's argument that the Court has no jurisdiction over him because he was never served with a supporting deposition fails. The Court records indicate that the People did in fact file a supporting deposition as to the unclassified misdemeanor charge of Aggravated Unlicensed Operation of a Motor Vehicle with the court on May 30, 2008 and had the defendant appeared on that date, he would have been served same. Defendant cannot now be heard to complain that he warranted during the relevant time period to make a timely request for a supporting deposition.
Moreover, defendant was subsequently served a copy of the supporting deposition at his arraignment on the underlying charges on October 11, 2012. The Court's record indicates that the People served defendant said supporting deposition and same was acknowledged by defendant's assigned counsel.
Based upon the forgoing, defendant's motion is denied.
The foregoing constitutes the Conclusions of Law and Decision and Order of the Court.
Dated: April 29, 2013
New Rochelle, New York
Hon. Susan I. KettnerCity Court Judge
As noted by the People, this branch of the motion was improperly addressed to the City Court of New Rochelle. Defendant has subsequently filed an additional separate motion addressing the issue of bail remittal. That motion has been properly filed in the Superior Court before the Hon. Barry E. Warhit. Accordingly, the Court need not entertain that branch of defendant's motion