Opinion
7626
07-17-2017
The PEOPLE of the State of New York, Plaintiff, v. Aron WOLNER, Defendant–Appellant.
For the People: Vincent A. Hemming, Esq., First Assistant District attorney For Defendant–Appellant: Zev Goldstein, Esq.
For the People: Vincent A. Hemming, Esq., First Assistant District attorney
For Defendant–Appellant: Zev Goldstein, Esq.
Michael M. Mohun, J.The above-named defendant-appellant having appealed from the judgement of conviction of the Warsaw Village Court (William C. Blythe, J.) finding him guilty of Speed In Zone (Vehicle and Traffic Law § 1180–d) after a bench trial concluded on August 15, 2016.
NOW, upon the Notice of Appeal dated August 21, 2016, the Affidavit of Errors dated November 21, 2016, the transcripts of the audio recordings of the proceedings below occurring on July 11, 2016, and August 15, 2016, the brief submitted by the defendant's attorney, Zev Goldstein, Esq., dated May 19, 2017, together with the annexed "Record on Appeal," the responding letter of Vincent A. Hemming, First Assistant District Attorney, dated June 28, 2017, and the Reply Affirmation of Zev Goldstein, Esq., dated July 7, 2017, due deliberation having been had, the following decision is rendered.
The defendant was charged with speeding by a Simplified Traffic Information dated April 25, 2016. It directed him to appear in the court below "by mail before or in person on" June 6, 2016. After a pre-trial conference on May 29, 2016, failed to result in a plea bargain, defense counsel sent a letter to the court dated June 8, 2016, requesting a trial date. The court scheduled the trial to occur on July 11, 2016. Thereafter, in a letter to the court dated July 1, 2016, sent by "Priority Express 1–day" mail, defense counsel formally requested a supporting deposition pursuant to CPL § 100.25. The July 1 letter was stamped "received" by the Court on July 6, 2016. There is no dispute that the request for the supporting deposition was timely—i.e. mailed "not later than 30 days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto" ( CPL § 100.25[2] ). In response to the request, the officer who issued the Simplified Traffic Information prepared a supporting deposition and mailed it to defense counsel on July 10, 2016. On the same day, she also filed with the court a copy of the deposition with proof of service by mail upon defense counsel. When defense counsel arrived at court for the trial the next day, however, he had not yet received the supporting deposition in the mail.
The statute provides that when a defendant has made a timely request, "the court must order the complainant police officer or public servant to serve a copy of such supporting deposition upon the defendant or his attorney, within thirty days of the date such request is received by the court, or at least five days before trial, whichever is earlier " (id. [emphasis added] ). Criminal Procedure Law § 100.40(2) states that a failure to file and serve a supporting deposition in accordance with § 100.25(2)when directed "renders the simplified information insufficient on its face."
As the judge began to swear in the People's first trial witness July 11, defense counsel moved orally for the dismissal of the Simplified Traffic Information for facial insufficiency on the ground that the duly requested supporting deposition had not been served on the defense. (It appears that defense counsel also submitted the same motion in written form on July 11.) The court denied the motion without explaining its reasons. Thereafter, the court adjourned the trial to August 15, 2016, at the request of the defense. On August 15, the trial proceeded and the defendant was convicted.
On appeal, the defendant contends that the court erred in failing to grant the motion to dismiss for facial insufficiency. Mr. Hemming, in his responding letter to the defendant's brief, acknowledges the failure to serve the supporting deposition "at least five days before trial" as required by the terms of CPL § 100.25(2), but urges the Court to consider that giving full force to those terms can "lead to ludicrous results" and will "encourage 'gamesmanship' " by defense attorneys. He points out that, in this case, in order for the supporting deposition to have been timely served—that is, served "at least five days before trial"—it would have had to have been provided to the defense on the same day that the request for it was stamped "received" by the court.
While it was not impossible for the supporting deposition to have been prepared and served on July 6, certainly the officer who wrote the speeding ticket can hardly be blamed for being unable to do so in this case. It appears that she did not even become aware of the request until it was too late. The lower court, however, created the difficulty by scheduling the trial for only five days after the last day that the defendant could submit a timely request for a supporting deposition. Thus, the "gamesmanship" to which Mr. Hemming objects consists, here, of the defense counsel merely taking the time allotted to him by the statute to make a timely request at a time when, due to the court's choice of the trial date, doing so had the effect of rendering it all but impossible for the supporting deposition to be served "five days before trial" as required by the same statute. Since the trial courts control the scheduling of their cases, however, they have all the power they need to eliminate any opportunity for such "gamesmanship." Consequently, the threat of "gamesmanship" advanced by Mr. Hemming is not, in the Court's estimation, a basis for failing to give full force to the explicit terms of CPL § 100.25(2).
"If a timely request for a supporting deposition is made, the failure to supply one renders the simplified information insufficient on its face ( CPL 100.40[2] ) and subjects it to dismissal upon motion ( CPL 170.35[1][a] ; 170.30[1][a] )" ( People v. Nuccio , 78 N.Y.2d 102, 104, 571 N.Y.S.2d 693, 575 N.E.2d 111 [1991] ; see also People v. Titus , 178 Misc.2d 687, 689, 682 N.Y.S.2d 521 [App. Term, 2nd Dept., 1998], leave to appeal denied by 92 N.Y.2d 986, 683 N.Y.S.2d 767, 706 N.E.2d 755 [1998] ). In the defendant-appellant's case, the supporting deposition was not served in time, and the defense made the appropriate motion to dismiss. The court erred in failing to grant the motion. Furthermore, the subsequent adjournment of the trial did not cure the defect ( People v. Feo , 77 Misc.2d 523, 355 N.Y.S.2d 905 [App. Term, 2nd Dept., 1974] ). Finally, the Court declines to grant the People's request for the dismissal of the appeal on the ground that the defendant-appellant's affidavit of errors was untimely. NOW, THEREFORE , it is hereby
ORDERED and ADJUDGED that the defendant-appellant's conviction upon the traffic infraction of "Speed in Zone" in violation of Vehicle and Traffic Law § 1180–d is reversed and vacated, the fine and surcharge imposed therewith, if paid, are remitted, and the Simplified Traffic Information is dismissed.