Opinion
2004KN069518.
Decided on July 7, 2005.
Defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL Sec. 511.2(a)), an Unclassified Misdemeanor. Defendant moves to dismiss the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of unclassified misdemeanors by that section.
Though Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree is an unclassified misdemeanor, it is subject to the 90 day time limitation of CPL Sec. 30.30(1)(b).
The Court has reviewed the People's Affirmation in Opposition dated April 29, 2005.
Defendant's motion is granted. The Court finds that the People are charged with 119 days in this matter.
PROCEDURAL HISTORY
The Defendant was arraigned in this matter on November 23, 2004. The Defendant was released in his own recognizance, and the matter was adjourned to December 15, 2004 for the filing of Discovery by Stipulation ("DBS"), and the filing of an abstract of the Defendant's Driving Record from the New York State Department of Motor Vehicles ("DMV abstract").
On December 15, 2004, the People failed to file and serve either DBS or the DMV abstract. The matter was adjourned to February 23, 2005, and the court file notes that the purpose of the adjournment is "30.30."
Prior to February 23, 2005, the People served a Statement of Readiness with DBS but no DMV abstract. The Statement of Readiness is dated January 18, 2005, and bears the Court's date stamp of the same date.
On February 23, 2005, Defendant stated that he had never received the People's Statement of Readiness. The matter was adjourned to March 24, 2005 for the People to provide proof that the Statement of Readiness had been served upon the Defendant. The Court file also bears the marking "30.30" as an additional purpose for the adjournment.
On March 24, 2005, The People failed to provide the Court with proof that Defendant had been served with the Statement of Readiness. Defendant asked for a motion schedule, and one was set by the Court.
To date, the People have not provided the Court or the Defendant with proof of mailing of the Statement of Readiness, or a copy of the Defendant's DMV abstract.
LEGAL ISSUES
Defendant raises two issues in his motion to dismiss. First, he asserts that the People's Statement of Readiness is a nullity since said statement was never served on the Defendant. Second, he contends that the People "did not announce ready, as they have no abstract."
When the People provide a Statement of Readiness, unless there is some basis to believe that the People's statement is illusory, said statement should be accepted by the Court. See, People v. England, 84 NY2d 1, 4, 613 NYS2d 854 (1994). In this case, however, Defendant contends that he was never served with a copy of the Statement of Readiness. Despite the repeated requests of this Court, the People have not provided the Court and the Defendant with any proof that said statement was actually served on the Defendant. Therefore, in the absence of proof of service, this Court deems the People's Statement of Readiness to be a nullity. See, People v. Kedzia, 64 NY2d 331, 486 NYS2d 888 (1985); People v. Bendter, 184 Misc 2d 374, 709 NYS2d 333 (Crim Ct., Kings Cty 2000).
To date, then, the People have never made a valid announcement of their readiness for trial in this matter. If we exclude February 23, 2004, the day of arraignment from our calculations (See, People v. Stiles, 70 NY2d 765, 520 NYS2d 745 (1987); People v. Eckert, 117 Misc 2d 504, 458 NYS2d 494 (City Ct., Syracuse, 1983)), and only run the time until March 23, 2005 (the day before Defendant requested a motion schedule), the People are charged with the entire 119 days for this time period.
Under CPL Sec. 30.30(4)(a), motion time is excluded in its entirety, regardless of whether the motion is made by the defense or the People. See, People v. Hodges, 12 AD3d 527, 784 NYS2d 638 (2nd Dept., 2004); People v. Sivano, 174 Misc 2d 427, 429, 666 NYS2d 875 (App. Term, 1st Dept., 1997).
On this basis alone, this matter could be dismissed. However, since the People could move to reargue and renew a dismissal granted on the above-stated basis, and provide the Court and Defendant with proof that the Statement of Readiness had indeed been served upon Defendant, it is necessary to address the second issue raised by the Defendant. In the absence of a DMV abstract, can the People announce ready for trial?
Putting aside the issue of whether or not the People could be ready for trial in the absence of an essential component of their proof at trial, the issue raised by Defendant is even more basic — In the absence of a DMV abstract, have the People ever actually converted this matter to an information?
See, People v. Caussade, 162 AD2d 4, 560 NYS2d 648 (2nd Dept., 1990), App. Den., 76 NY2d 984, 563 NYS2d 772 (1990) in which the court specifically held that the failure of a District Attorney to comply with the mandates of CPL article 240 relative to discovery is in no way inconsistent with the prosecution's continued readiness for trial. 162 AD2d at 8. The Court distinguished the failure to comply with discovery, which could be addressed by a motion to compel under CPL Sec. 240.40, and a failure to perform an act which results in a delay of the prosecution, such as the failure to produce the Defendant for trial. 162 AD2d at 10.
The answer to this question depends upon how the accusatory instrument is viewed. If viewed as a "simplified traffic information," then under CPL Sec. 100.10(2)(a), "it serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and . . . it may serve . . . as a basis for prosecution of such charges." Since such an accusatory instrument "contains no factual allegations of an evidentiary nature supporting such charge," the document acts as an "appearance ticket," and under CPL Sec. 100.25, a Defendant is given the right to request a supporting deposition within 30 days of his appearance. See, People v. Noblett, 172 Misc 2d 826, 828, 660 NYS2d 517 (Crim.Ct., Monroe Cty, 1997). Failure to provide the supporting deposition within 30 days of the defendant's appearance renders the simplified information facially insufficient, and subject to dismissal. See, CPL Sec. 100.40(2).
In this matter, the People filed a supporting deposition of the police officer at arraignment. Thus, if this accusatory instrument were viewed as a simplified traffic information, the People have satisfied their burden of converting this document under CPL Sec. 100.25.
However, while the accusatory instrument before this Court is in the form of a simplified traffic information, it cannot be treated as such. CPL Sec. 100.10(2)(a) is quite specific-a simplified traffic information "designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges." (Emphasis added.)
The back of the subject document includes several lines of factual allegations, written by the arresting officer, all of which are of an evidentiary nature. In this case, those statements include the predicate for the stop of the Defendant (defective headlight), and most significant to our analysis, a statement that the deponent "is informed by the official records of the Department of Motor Vehicles that the defendant's license to operate a motor vehicle has been suspended."
The lower courts of this state have a difference of opinion regarding the effect of the inclusion of factual allegations to the accusatory instrument. Beginning with People v. Farley, 129 Misc 2d 925, 494 NYS2d 622 (Dist.Ct., Suffolk Cty 1985), continuing through People v. Blake, 154 Misc 2d 993, 585 NYS2d 993 (Crim.Ct., Kings Cty 1992), and most recently, in People v. Kouyate, 159 Misc 2d 179, 603 NYS2d 374 (Crim.Ct., NY Cty 1993), this line of cases holds that where the accusatory instrument contains factual allegations, it is no longer a simplified traffic information, and is subject to "the sufficiency requirements of CPL Sec. 100.40(1)." Farley, 129 Misc 2d at 926.
The seminal case in opposition to this view is People v. Vierno, 159 Misc 2d 770, 606 NYS2d 557 (Crim.Ct., Richmond Cty 1993). There, in a well-reasoned examination of this issue, the court held that a simplified traffic information is facially sufficient where the form of the ticket substantially conforms to the prescriptions of the Commissioner of Motor Vehicles, and the addition of factual allegations to the simplified information do not render it insufficient.
The Vierno court conducted an extensive review of this issue, particularly in regards to the Regulations promulgated by the Commissioner of the Department of Motor Vehicles, which require that the form of the ticket need only be "substantially" complied with. "To dismiss the accusatory instrument for simply providing more than was required by the law would be elevating form over substance." 159 Misc 2d at 776.
Further, in ruling that the additional facts provided on the back of the ticket "inured to the benefit, not the detriment of the defendant," and actually "fleshed out the details of the accusatory portion of the ticket," the Vierno court opined that "any minor variation does not affect the validity of the document unless the variation be tantamount to a denial of due process." 159 Misc 2d at 775 (Emphasis added).
Given the plain language of CPL Sec. 100.10(2)(a), it is an inescapable conclusion that a "simplified traffic information" does not include "factual allegations of an evidentiary nature supporting such charge." Thus, under the circumstances of this case, this Court follows the Farley, Blake and Kouyate line of cases in ruling that the accusatory instrument before this Court is not a "simplified traffic information," and as such, it is a misdemeanor complaint requiring conversion.
The holding in Vierno however, can be distinguished from the ruling in this matter. Were the accusatory instrument before this court to include only non-hearsay factual accusations, then the additional facts would "flesh out" the details of the People's case, and "inure" to the benefit of the defendant. Thus, if the accusatory instrument at issue here contained only the allegation regarding the deponent's observation of the Defendant driving a motor vehicle with a defective headlight, it would be deemed a simplified traffic information.
Here, however, the ticket before this Court contains hearsay allegations. The deponent indicates that he has been "informed by the official records of the Department of Motor Vehicles" that this Defendant's license to drive is suspended. This statement is clearly based upon hearsay information and requires corroboration. To rule otherwise would be a violation of the Defendant's right to due process.
The addition of this hearsay information to the back of the ticket does not "inure" to the benefit of the Defendant-indeed, to allow the People to proceed to trial on an accusatory instrument that contains such uncorroborated hearsay would be in violation of CPL Sec. 100.40, which requires that such statements be corroborated. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).
Therefore, if an accusatory instrument which purports to be a simplified traffic information includes non-hearsay facts, then the Vierno rule should be followed, and the only corroboration required is the filing of a supporting deposition, within 30 days of the defendant's appearance and demand for such documentation. If, however, the ticket contains hearsay allegations, then it is no longer a simplified traffic information, but is instead a misdemeanor complaint requiring conversion.
This rule applies only to misdemeanor VTL matters, such as Defendant herein is charged. It does not apply to VTL traffic infractions. See, Blake, 154 Misc 2d at 663.
Applying these principles to the instant matter, this court finds as follows; At Defendant's arraignment on November 23, 2004, in the mistaken belief that their accusatory instrument was a simplified traffic information, the People only filed a supporting deposition. The accusatory instrument contained hearsay allegations. The People never filed a copy of the DMV abstract, or served one upon Defendant. Thus, from that day, until March 24, 2005, when Defendant requested a motion schedule, the hearsay allegations of the accusatory instrument were not cured.
The People are therefore charged with the 119 days from November 24, 2004 (the day after arraignment), until March 23, 2005 (the day before Defendant requested a motion schedule). Since more than 90 days have passed, and the accusatory instrument before this court remains unconverted, this matter is dismissed pursuant to CPL Sec. 30.30(1)(b).
This shall constitute the opinion, decision, and order of the Court.