Opinion
10-24-2017
PEOPLE of the State of New York, Plaintiff, v. Michael A. STEVENS, Defendant.
Frank DeSousa for defendant. Benjamin Kaplan, Village Prosecutor, for plaintiff.
Frank DeSousa for defendant.
Benjamin Kaplan, Village Prosecutor, for plaintiff.
GARY C. GRANOFF, J. This matter comes before the Court by Motion of Defendant, dated May 8, 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. and that after the defendant received the supporting deposition at the traffic stop on March 26, 2017, defendant requested another supporting deposition by letter dated April 4, 2017, and defendant claims 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 entered a plea by mail on April 5, 2017, entering a plea of "not guilty" on the above referenced summons and requested a supporting deposition at the same time. The court records indicate that a supporting deposition was delivered to the defendant at the time of the issuance of the traffic summons for the alleged violation on March 26, 2017 by the issuing police officer and that a second supporting deposition was served by mail on the defendant by the police officer on April 10, 2017.
Thereafter on May 8, 2017 counsel for the defendant filed a Notice of Motion to Dismiss for Failure to Provide a Sufficient Supporting Deposition. The People thereafter filed an Affirmation in Opposition dated May 30, 2017 with the Court.
The Court has now had an opportunity to review the supporting deposition issued at the traffic stop to the defendant dated March 26, 2017, the additional supporting deposition forwarded on April 10, 2017 by the Police Officer, the Notice of Motion to Dismiss by defendant's counsel, and the People's Affirmation in Opposition.
Defendant's counsel argues that as of May 8, 2017 no additional supporting deposition had been received as requested on April 5, 2017, however, the Court's file shows that an additional supporting deposition was served by the police officer on April 10, 2017 and there is an Affidavit of Service in the court's file concerning the due mailing of the second supporting deposition dated April 10, 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, a supporting deposition dated March 26, 2017. As such, the Court finds that the serving of the second supporting deposition by the police officer was voluntary and not mandatory.
Defendant's counsel also argues that the supporting deposition issued with the ticket was not sufficient and therefore was defective. Defendant's counsel argues that the supporting deposition was lacking in specific details alleging all of the elements of the offence and was defective because the police officer failed to state what lane the motorist was traveling in at the time of the violation; the time of the stop; or where he was in relation to the defendant. Defendant's counsel also argued that the supporting deposition was also defective because the police officer failed to state the flow of traffic or what the road conditions were at the time of the alleged violation, and that the police officer merely states the charge was based upon "direct observation". Further, Defendant's counsel states that overall the supporting deposition was defective because the officer failed to give any additional information other that what was stated in the traffic ticket and that it was merely a re-statement of what was printed on the ticket, and that a supporting deposition is meant to supplement the accusatory instrument, not merely to be an exact re-statement. He goes on to argue that the supporting deposition does not contain any further factual information than the ticket.
The People's Affirmation in Opposition states that the defendant does not contest the sufficiency of the Summons, and instead argues that the supporting deposition is insufficient and that the Summons should therefore be dismissed. The People's Affirmation in Opposition addresses the various points argued by defendant's counsel in his Motion. The People argue that whether an additional supporting deposition was issued is irrelevant since the voluntary providing of a supporting deposition moots the defendant's right to demand one. The Court agrees with the statement by the People and finds that the defendant did not have a right to request an additional supporting deposition. See People v. Key, 87 Misc.2d 262, 266, 391 N.Y.S.2d 781 (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 demand"). See also People v. Smith, 163 Misc.2d 353, 621 N.Y.S.2d 449 (Justice Court, Town of Perinton 1994) ("Where a supporting deposition is voluntarily supplied within the time during which a defendant, pursuant to N.Y. 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"). Also, in People v. Corletta, 12 Misc.3d 666 (2006), 814 N.Y.S.2d 514 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 supporting deposition on March 26, 2017, at the scene of the police stop, the defendant's right to demand an additional supporting deposition became moot.
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 offence or offences charged." People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (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 N.Y.2d 41, 517 N.Y.S.2d 448, 510 N.E.2d 317 (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 supporting depositions (both voluntarily served, dated March 26, 2017 and the supporting deposition served on April 10, 2017), 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 53 mph in a 30 mph zone and that the speed was determined 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 of defendant was traveling provides sufficient detail." People v. Worrell, 10 Misc.3d 1063(A), 2005 WL 3501576, 2005 N.Y. 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 N.Y. 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. P. 48 (2017).
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. BD8393593, will be placed on the next available Conference Calendar or Trial Calendar if the defendant has already had a Conference.
SO ORDERED.