Opinion
No. ST144R9LRV.
12-15-2015
PEOPLE of the State of New York, v. Andrew J. SORRENTINO, Defendant.
Margaret D. Place, Esq., Warren County Assistant District Attorney, for the People. Jeffrey C. Matte, Esq., Matte & Nenniger, P.C., for the Defendant.
Margaret D. Place, Esq., Warren County Assistant District Attorney, for the People.
Jeffrey C. Matte, Esq., Matte & Nenniger, P.C., for the Defendant.
GARY C. HOBBS, J.
Findings of Fact
On or about September 1, 2015, the Defendant was charged with the traffic offense of Following Too Closely [Vehicle and Traffic Law § 1129(a) ]. A timely request was made for a supporting deposition. On or about November 11, 2015, Officer Randy Strattman served and filed a supporting deposition. The supporting deposition states that the defendant was charged with a violation of Following Too Closely because the “Defendant was involved in a property damage accident” and he “was unable to stop before striking the vehicle in front of him.” The supporting deposition states that the charge is based on the Officer's information and belief. However, there is no information indicating the source of the Officer's information and belief. Attached to the supporting deposition is a CPL 710.30 Notice, which states that the defendant told Officer Strattman, “I didn't have time to stop.”
By Notice of Motion, dated November 13, 2015, the defendant moved to dismiss the charge filed against him on the grounds that the supporting deposition indicates that the charge is based on the Officer's “information and belief,” but fails to indicate the source of that information or belief. The defendant further asserts that the supporting deposition fails to set forth a factual basis to establish all of the essential elements of Following Too Closely. By letter dated December 10, 2015, the People oppose the defendant's motion asserting that the motion “relies on statutes that relate to Informations and Complaints, not to Uniform Traffic Tickets” and, as a result, the People assert that the motion is defective and must be denied.
Conclusions of Law
Section 100.25(2) of the CPL entitles a defendant charged with a traffic offense to receive a supporting deposition of the police officer containing allegations of fact providing reasonable cause to believe that the defendant committed the offense charged:
“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.” CPL § 100.25(2).
Contrary to the assertion of the People, the defendant's motion correctly cites to CPL Sections 100.25 for support of the motion. Even if, as the People assert, the defendant had cited to an incorrect section of the law in support of its motion, such a mistake would not make the defendant's motion per se invalid. This Court must still review the defendant's motion based on the facts and applicable law to this case.
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Section 100.20 of the CPL prescribes the required content of a supporting deposition. More specifically, CPL 100.20 states:
“A supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein ”. CPL § 100.20 (Emphasis added).
It is well settled that the content of a supporting deposition, whether prescribed by CPL §§ 100.25(2) or 100.20, need not be highly detailed. To be sufficient, a supporting deposition must contain merely enough facts concerning each element of the offense charged to provide reasonable cause to believe that the statute was violated. People v. Hohmeyer, 70 N.Y.2d 41, 510 N.E.2d 317, 517 N.Y.S.2d 448 (1987). Thus, to be sufficient, a supporting deposition must contain enough facts to allege all of the prerequisites of the offense specified in the statute, but nothing more. In other words, a supporting deposition does not need to state all the evidentiary facts available to the arresting officer, but rather only enough facts to provide reasonable cause to believe that the statute was violated by the defendant, leaving for trial the question whether the People will be able to prove that. People v. Ortiz. 146 Misc.2d 594, 596, 558 N.Y.S.2d 784 (Sup.Ct., Appellate Term, 1990) ; People v. Miles, 64 N.Y.2d 731, 732–33, 485 N.Y.S.2d 747, 475 N.E.2d 118 (1984) ; People v. Greenfield, 9 Misc.3d 1113 (Village Court, Village of Muttontown 2005).
In People v. Hohmeyer, 70 N.Y.2d 41, 510 N.E.2d 317, 517 N.Y.S.2d 448 (1987), the New York Court of Appeals held that a supporting deposition was legally sufficient, even though it was prepared on a pre-printed form document, which contained only a checklist of potentially applicable police observations, where the check marks in the applicable boxes signified the police officer's observations. The Court of Appeals unanimously held that the supporting deposition only needs to be a written instrument containing factual allegations of an evidentiary character which support or tend to support the charge or charges contained therein. People v. Hohmeyer, supra, 70 N.Y.2d at 43–44. The supporting deposition meets the requirements of CPL 100.25(2) where it contains factual allegations providing reasonable cause to believe that the defendant committed the offense or offenses charged. People v. Hohmeyer, supra, 70 N.Y.2d at 43–44.
As a result, a supporting deposition must set forth enough evidentiary facts “in a plain and concise manner” to provide reasonable cause to believe that the defendant committed all of the necessary elements of the offense charged, failing which it must be rejected and the case dismissed. People v. Cohen 131 Misc.2d 898, 900, 502 N.Y.S.2d 123 (City Court, City of Yonkers, 1986) ; People v. Hust, 74 Misc.2d 887, 890, 346 N.Y.S.2d 303 (County Court, Broome County, 1973) ; People v. Key, 87 Misc.2d 262, 267, 391 N.Y.S.2d 781 (Appellate Term, 2d Dept., 1976), aff'd, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (1978).
In addition, where the charge is based on the Officer's information and belief, rather than based on his personal observations, the supporting deposition must contain a statement of the source of that information and belief if it is to be sufficient on its face. People v. Lesnak, 165 Misc.2d 706, 708–709 (Dist Ct, 1st Dist., 1995) ; People v. Dumas, 42 Misc.3d 265, 269 (City Ct., City of Buffalo, 2013) (Holding that a deposition supporting a Simplified Traffic Information, to the extent it is based on information and belief, must contain a statement of the source of that information and belief if it is to be sufficient on its face); People v. Cohen, 131 Misc.2d 898, 502 N.Y.S.2d 123 (City Court, City of Yonkers, 1986) (the Court dismissed a speeding charge where the police officer's supporting deposition failed to state whether his accusation that the defendant was speeding was based upon personal observation or upon other mechanical or other technical means); People v. Hust, 74 Misc.2d 887, 890, 346 N.Y.S.2d 303 (County Court, Broome County, 1973) (since the supporting deposition did not apprise the defendant of the basis for the Police Officer's “feeling” that the defendant was intoxicated, the supporting deposition was insufficient on its face).
In the present case, the supporting deposition is based on the Officer's “information and belief” fails to set forth the source of that information and belief and, as a result, the supporting deposition is legally insufficient.
In addition, the supporting deposition fails to set forth enough evidentiary facts in a plain and concise manner to provide reasonable cause to believe that the defendant committed all of the necessary elements of the offense charged. Here, the defendant is charged with the violation of Following Too Closely [Vehicle and Traffic Law § 1129(a) ]. Section 1129(a) of the Vehicle and Traffic Law provides that a “driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” Thus, the essential elements of the offense of Following Too Closely are (1) the defendant operated a motor vehicle, and (2) followed another vehicle more closely than was reasonable and prudent, when considering the speed of the vehicles and the conditions of the highway.
Here, the supporting deposition states that the violation of Following Too Closely is based on the fact that the “Defendant was involved in a property damage accident” and he “was unable to stop before striking the vehicle in front of him.” However, the occurrence of the accident alone is insufficient to establish the violation of Following too Closely. See: Lawhorn v. Scott, 298 A.D.2d 503, 503, 04 (2d Dept 2002) (The only proof in the record as to how closely the appellants' vehicle was following the Martin car immediately before the accident is the deposition testimony of Martin, who stated that the appellants' vehicle was “real close.” This testimony is speculative at best.).
Based on the foregoing, the defendant's motion to dismiss is granted. The charge of Following Too Closely is dismissed.