Opinion
Docket No. XXXXX
08-02-2021
The PEOPLE of the State of New York, Plaintiff, v. Jose ZAVALA-SANTOS, Defendant.
Counsel for Plaintiff: Dwight A. Kennedy, Esq., Carrieri & Carrieri, P.C., 200 Old Country Road, No. 620, Mineola, NY 11501 Counsel for Defendant: Frank A. DeSousa, Esq., 24 Main Street, 2nd Floor, Hempstead, NY 11550
Counsel for Plaintiff: Dwight A. Kennedy, Esq., Carrieri & Carrieri, P.C., 200 Old Country Road, No. 620, Mineola, NY 11501
Counsel for Defendant: Frank A. DeSousa, Esq., 24 Main Street, 2nd Floor, Hempstead, NY 11550
Steven G. Leventhal, J.
In five separate Uniform Traffic Tickets issued on March 6, 2020, the defendant was charged with violating various sections of the New York Vehicle and Traffic Law. In response to a timely request for supporting depositions, the defendant was provided with a single supporting deposition referencing one of the Uniform Traffic Ticket numbers, and purporting to provide additional information with respect to the violations charged in each of the five Uniform Traffic Tickets.
In Uniform Traffic Ticket K019BLMB15, it was charged that the defendant violated Section 509-2 of the New York Vehicle and Traffic Law on March 6, 2020, at 6:53 a.m., in front of 232 Bayville Road, in the Village of Lattingtown, New York. The Uniform Traffic Ticket described the violation as "OPERATING OUT OF CLASS". In a supporting deposition of the same date, the issuing Police Officer affirmed that "investigation revealed that motorist was unlicensed."
In Uniform Traffic Ticket K019BLM9VM, it was charged that the defendant violated Section 509-2 of the New York Vehicle and Traffic Law on March 6, 2020, at 6:53 a.m., in front of 232 Bayville Road, in the Village of Lattingtown, New York. The Uniform Traffic Ticket described the violation as "OPERATING OUT OF CLASS". In a supporting deposition of the same date, the issuing Police Officer affirmed that "investigation revealed that motorist was unlicensed."
In Uniform Traffic Ticket K019BLM9KX, it was charged that on March 6, 2020, the defendant violated Section 1180(a) of the New York Vehicle and Traffic Law. The Uniform Traffic Ticket described the violation as "SPEED NOT REASONABLE & PRUDENT". In a supporting deposition of the same date, the issuing Police Officer affirmed that he "observed motorist operating above listed vehicle at speed not reasonable."
In Uniform Traffic Ticket K019BLM9T5, it was charged that on March 6, 2020, the defendant violated Section 509-8 of the New York Vehicle and Traffic Law. The Uniform Traffic Ticket described the violation as "FLD/NOTIFY DMV CHANGE OF ADDRESS". In a supporting deposition of the same date, the issuing Police Officer affirmed that "further investigation revealed that motorist failed to notify DMV of address change."
In Uniform Traffic Ticket K019BLM9X9, it was charged that on March 6, 2020, the defendant violated Section 402-1 of the New York Vehicle and Traffic Law. The Uniform Traffic Ticket described the violation as "NO DISTINCTIVE PLATE/INSECURE/DIRTY". In a supporting deposition of the same date, the issuing Police Officer affirmed that the "plate was obstructed."
Defendant moves for an order dismissing all charges pursuant to Criminal Procedure Law Sections 100.20, 100.25, 100.40, 170.30 and 170.35 on the grounds that: (i) the supporting deposition referenced only Uniform Traffic Ticket Number K019BLM9KX and, therefore, the People failed to produce a supporting deposition for the other Uniform Traffic Tickets; (ii) the supporting deposition failed to supplement the Uniform Traffic Tickets with factual allegations of an evidentiary character tending to support the charges; and (iii) the accusatory instruments failed to provide reasonable cause to believe that the defendant committed the offenses charged.
Criminal Procedure Law Section 100.20 provides, in pertinent part, that "[a] supporting deposition is a written instrument containing factual allegations of an evidentiary character which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein." Criminal Procedure Law Section 100.25 requires that the supporting deposition contain "allegations of fact providing reasonable cause to believe that the defendant committed the offense or offenses charged." See, People v. Hohmeyer , 70 NY2d 41, 43 (1987).
In People v. Tsys (Vasily) , 29 Misc 3d 143(a) (App. Term, 2d Dept. 2010), lv. den., 16 NY3d 900 (2011), the court discussed the "fundamental purpose" of a supporting deposition.
Furthermore, the supporting depositions provided reasonable cause to believe that the defendant committed the offenses charged and served the fundamental purposes of providing the accused notice sufficient to prepare a defense and in a form sufficiently detailed to prevent a subsequent retrial for the same offenses.
Citing People v. Prevete , 10 Misc. 3d 78, 79-80 (App. Term, 2d Dep't., 2005), quoting People v. Casey , 95 NY2d 354, 360 (2000). Internal quotations omitted.
The right to receive the supplemental factual allegations set forth in a supporting deposition is particularly important where the accusatory instrument is a simplified traffic information, because a simplified traffic information need not provide reasonable cause to believe that the defendant committed the defense charged.
Because a simplified information provides only limited information, a defendant arraigned upon a charge contained in such an instrument may request, and is entitled as of right, to a supporting deposition by the complainant, police officer or public servant. If the defendant makes no request, the right to a supporting deposition is waived and prosecution may proceed on the original instrument. If a timely request for a supporting deposition is made, the failure to supply one renders the simplified information insufficient on its face.
People v. Nuccio , 17 NY2d 102, 104 (1991).
Pursuant to Criminal Procedure Law Section 100.20, a supporting deposition is a "written instrument accompanying or filed in connection with" an accusatory instrument. The statute does not require that the supporting deposition reference the accusatory instrument that it accompanies or in connection with which it is filed. Nor does the statue require that an individual supporting deposition accompany each separate accusatory instrument. Here, a single supporting deposition made with respect to multiple Uniform Traffic Tickets issued to the same defendant, on the same date, and at the same time and place, addressing all of the offenses alleged to have been committed by the defendant would, if otherwise sufficient, satisfy "the fundamental purposes of providing the accused notice sufficient to prepare a defense and in a form sufficiently detailed to prevent a subsequent retrial for the same offenses." See, People v. Tsys (Vasily) , supra.
1. Uniform Traffic Tickets K019BLMB15 and K019BLM9VM
Uniform Traffic Ticket K019BLMB15 and Uniform Traffic Ticket K019BLM9VM both charged the defendant with committing the same offense, a violation of Vehicle and Traffic Law Section 509 -2, on the same date, at the same time, and in the same place. Vehicle and Traffic Law Section 509 -2 provides that "[w]henever a license is required to operate a motor vehicle, no person shall operate a motor vehicle unless he is the holder of a class of license which is valid for the operation of such vehicle."
The supporting deposition provided no facts tending to support the charge of operating a vehicle out of class or providing reasonable cause to believe that the defendant committed the offense charged. Rather, the allegation that the "motorist was unlicensed" described a violation of a different statute, with which the defendant was not charged. Section 509-1 provides that "no person shall operate or drive a motor vehicle upon a public highway of this state ... unless he is duly licensed"
For the foregoing reasons, defendant's motion to dismiss Uniform Traffic Ticket K019BLMB15 and Uniform Traffic Ticket K019BLM9VM is granted.
2. Uniform Traffic Ticket K019BLM9KX
Vehicle and Traffic Law Section 1180(a) provides that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." Uniform Traffic Ticket K019BLM9KX, charging the defendant with a violation of Section 1180(a), was supplemented by a supporting deposition affirming that the motorist was observed operating the vehicle at speed not reasonable.
Because an otherwise lawful rate of speed may be unreasonable and imprudent under the prevailing traffic, road, weather or lighting conditions, or due to the presence of pedestrians or a myriad of other actual and potential hazards, the police officer's judgment that the defendant was driving at an unreasonable rate of speed was a legal conclusion, and not a factual allegation of an evidentiary character tending to support the charge or providing reasonable cause to believe that the defendant committed the offense charged. Without factual elaboration, the accusatory instrument fails to achieve "the fundamental purposes of providing the accused notice sufficient to prepare a defense and in a form sufficiently detailed to prevent a subsequent retrial for the same offenses." Id.
For the foregoing reason, defendant's motion to dismiss Uniform Traffic Ticket K019BLM9KX is granted.
3. Uniform Traffic Ticket K019BLM9T5
Uniform Traffic Ticket K019BLM9T5, in which it was charged that the defendant violated Section 509-8 of the New York Vehicle and Traffic Law is supported by a deposition in which the issuing Police Officer affirmed that "further investigation revealed that motorist failed to notify DMV of address change". Unlike the police officer's conclusory statement that the motorist operated the vehicle at an unreasonable speed, the supporting deposition here alleges a factual allegation of an evidentiary character (i.e. that the defendant failed to notify the Department of his change of address) sufficient to satisfy "the fundamental purposes of providing the accused notice sufficient to prepare a defense and in a form sufficiently detailed to prevent a subsequent retrial for the same offenses." See, People v. Tsys (Vasily) , Id.
For the foregoing reason, defendant's motion to dismiss Uniform Traffic Ticket K019BLM9T5 is denied.
4. Uniform Traffic Ticket K019BLM9X9
Uniform Traffic Ticket K019BLM9X9, in which it was charged that the defendant violated Section 402-1 of the New York Vehicle and Traffic Law is supported by a deposition in which the issuing Police Officer affirmed that the defendant's "plate was obstructed".
Vehicle and Traffic Law Section 402 -1(b) provides, in pertinent part, that:
Number plates shall be kept clean and in a condition so as to be easily readable and shall not be covered by glass or any plastic material, and shall not be knowingly covered or coated with any artificial or synthetic material or substance that conceals or obscures such number plates or that distorts a recorded or photographic image of such number plates, and the view of such number plates shall not be obstructed by any part of the vehicle or by anything carried thereon
The supporting deposition here alleges a factual allegation of an evidentiary character (i.e. that the plate was obstructed) sufficient to satisfy "the fundamental purposes of providing the accused notice sufficient to prepare a defense and in a form sufficiently detailed to prevent a subsequent retrial for the same offenses." See, People v. Tsys (Vasily) , Id. The particular manner in which the plate is alleged to have been obscured is a matter for trial.
For the foregoing reason, defendant's motion to dismiss Uniform Traffic Ticket K019BLM9X9 is denied.
Counsel are directed to appear for a conference on August 23, 2021.
The foregoing constitutes the judgment and order of the Court.