Opinion
2016-2217 OR CR
03-14-2019
The PEOPLE of the State of New York, Respondent, v. Jay M. STAPLE, Appellant.
Jay M. Staple, appellant pro se. Town Prosecutor, Town of Monroe (Sarah Ramos of counsel), for respondent (no brief filed).
Jay M. Staple, appellant pro se.
Town Prosecutor, Town of Monroe (Sarah Ramos of counsel), for respondent (no brief filed).
PRESENT: THOMAS A. ADAMS, P.J., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ.
ORDERED that the judgment of conviction is affirmed.
On May 18, 2015, the People charged defendant, in a simplified traffic information, with failing to stop at a stop sign ( Vehicle and Traffic Law § 1172 [a] ) on Acres Road in the Town of Monroe, New York. The supporting deposition of the New York State trooper who issued the summons states, among other things, that the "General Direction of Travel by Defendant" had been "East," and that defendant had stated to the trooper, who had explained the reason for stopping defendant, "I know, I didn't stop. I was looking at my GPS." At the arraignment, defendant contended that neither the simplified traffic information nor the supporting deposition adequately identified the location of the stop sign alleged to have been disobeyed. However, defendant did not move to dismiss the accusatory instrument for facial insufficiency. Defendant states that, after an off-the-record discussion between the Justice Court and the prosecutor, the matter was adjourned for a trial.
At a May 4, 2016 nonjury trial, the trooper testified that, at about 10:12 p.m., while parked on the eastbound lane on Acres Road in the Town of Monroe, he had observed defendant's vehicle heading westbound on Acres Road near the intersection of Bakertown Road, and that defendant had failed to come to a full stop at the stop sign posted at that intersection. The trooper stopped defendant on Acres Road and issued a traffic ticket to defendant. On cross-examination, the trooper agreed that the simplified traffic information states only that the violation occurred at "Acres Road" but not at the intersection with Bakertown Road, and that the supporting deposition, in error, states that defendant was traveling eastbound before failing to stop at the stop sign. After declining the Justice Court's offer to adjourn the trial to permit defendant to inspect the stop sign's location, the Justice Court found the trooper to have been credible, convicted defendant of the offense, and imposed sentence.
A simplified traffic information is sufficient on its face where it substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25 [1] ; 100.40 [2]; People v. Dumay , 23 NY3d 518, 523 [2014] ; People v. Key , 45 NY2d 111, 116-117 [1978] ; People v. Patrizio , 62 Misc 3d 130[A], 2018 NY Slip Op 51901[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ) "and provides the court with sufficient information to establish that it has jurisdiction to hear the case" ( People v. Appel , 44 Misc 3d 133[A], 2014 NY Slip Op 51152[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also People v. Fernandez , 20 NY3d 44, 48 [2012] ; People v. Sperandeo , 52 Misc 3d 135[A], 2016 NY Slip Op 51032[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ). "[E]videntiary facts are not required to be pleaded in a simplified traffic information" ( People v. Kwas , 43 Misc 3d 140[A], 2014 NY Slip Op 50811[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014] ). Here, the facts in the simplified traffic information, which on its face conforms to the formal requirements for such an instrument, were sufficient for notice purposes, as it "designate[d] the offense charged" ( People v. Long , 44 Misc 3d 126[A], 2014 NY Slip Op 50949[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014] ), and established the Justice Court's jurisdiction over the offense (see People v. Appel , 44 Misc 3d 133[A], 2014 NY Slip Op 51152[U], *1).
Defendant contends that the supporting deposition is legally insufficient absent a reference to the cross street where the stop sign alleged to have been violated was posted. However, the question of whether a supporting deposition is legally insufficient to establish reasonable cause is nonjurisdictional (see People v. Beattie , 80 NY2d 840, 842-843 [1992] ; People v. Hakim , 60 Misc 3d 137[A], 2018 NY Slip Op 51112[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ), and is waived absent a pretrial motion to dismiss, in writing and on reasonable notice to the People (see People v. Key , 45 NY2d at 116-117 ; People v. Hakim , 60 Misc 3d 137[A], 2018 NY Slip Op 51112[U], *2; People v. Sperandeo , 52 Misc 3d 135[A], 2016 NY Slip Op 51032[U], *1). While defendant may have orally raised the issue, he never moved, in writing and on notice, to dismiss the accusatory instrument, and thereby waived the claim.
Defendant also contends that the supporting deposition, in its reference to defendant having been traveling eastbound on Acres Road prior to the violation, was contradicted by the trooper, who testified that defendant had been traveling westbound before the violation, rendering either the supporting deposition or the trial proof legally insufficient. Insofar as defendant alleges that the contradiction between the reference to his direction of travel in the supporting deposition and the trooper's trial testimony renders the instrument facially insufficient, again, absent a written motion to dismiss on notice, the claim was waived. In any event, such instruments are reviewed for sufficiency within their four corners (see People v. Thomas , 4 NY3d 143, 146 [2005] ) "notwithstanding that a witness's trial testimony impeaches his or her statements in support of an accusatory instrument" ( People v. Sanchez , 54 Misc 3d 139[A], 2017 NY Slip Op 50149[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] [and citations therein] ). To the extent that defendant contends that the trooper's sworn statements in the accusatory instrument fatally impeached the trooper's trial testimony, and thus, that the trial evidence was legally insufficient to support the conviction, defendant never objected on this ground and thereby failed to preserve the claim for appellate review (see CPL 470.05 [2] ; People v. Hawkins , 11 NY3d 484, 492 [2008] ; People v. Gray , 86 NY2d 10, 19 [1995] ). In any event, the discrepancy is inconsequential (see e.g. People v. Greenblatt , NYLJ, Nov. 14, 1994 at 29, col 4 [App Term, 2d Dept, 9th & 10th Jud Dists 1994] [the testimony of a state trooper that defendant was traveling "east" when observed to be speeding, which contradicted the accusatory instrument which specified that defendant was traveling "west" (corrected to "east" in the supporting deposition), an admitted "mistake," was a "slight discrepancy [which] at most presented an issue of credibility"] ).
Finally, as for the off-the-record conversation alleged to have occurred between the prosecutor and the trial court during the arraignment, defendant failed to preserve any claim of error with respect to it, given his failure to object to the communication (see CPL 470.05 [2] ; People v. Siegelson , 19 NY2d 889 [1967], amended 19 NY2d 1018 [1967] ; People v. Christie , 241 AD2d 699, 701 [1997] ). In any event, the record does not establish that the colloquy involved the prosecutor, much less whether it concerned matters related to defendant's arraignment, thereby implicating defendant's right to be present at all material stages of the trial (see generally CPL 260.20 ; e.g. People v. Khan , 146 AD3d 810, 810-811 [2017] ; People v. Prendergast , 33 Misc 3d 136[A], 2011 NY Slip Op 52032[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2011] ).
Accordingly, the judgment of conviction is affirmed.
ADAMS, P.J., RUDERMAN and EMERSON, JJ., concur.