Opinion
LV388448-4.
Decided August 30, 2006.
Special Prosecutor, The District attorney of Washington County Kevin Cortwright Esq. by Brian W. Felton Esq. for the People.
Gerstanzang, O'Hearn, Hickey Gerstenzang by Peter Gerstanzang Esq., for the Defendant.
In a prior decision a probable cause hearing has been ordered along with a Huntley hearing to commence on Sept. 12, 2006.
The defendant now moves in writing on notice to the Special Prosecutor for a dismissal of two Accusatory Instruments pursuant to CPL 255.10 CPL 255.20 on the ground that a) they are insufficient as a matter of law and b) that the accusatory instrument charging a violation of section 1194 of the VTL was not supplemented by a timely demanded supporting deposition.
The court has before it the two accusatory instruments, The first is a simplified information along with a supporting deposition charging Driving while intoxicated in violation of VTL section 1192 (3).
The second is a simplified information charging a violation of VTL section 1194 (1B) refusal of a Breath Screening Test.
The Special prosecutor having opposed the motion in writing; The court will first consider the motion to dismiss the charge of Driving while intoxicated based on the insufficiency of the Accusatory Instrument.
A supporting deposition to a simplified information must provide "reasonable cause to believe the defendant committed the offense charged, CPL 100.25 (2)
The standard for facial sufficiency of a simplified information, is the same as the standard for a misdemeanor complaint and a Felony complaint. People v. Born, 166 Misc 2d 353, 634 NYS2d 915.
In determining the facial sufficiency of the simplified information, (or a misdemeanor complaint or Felony complaint) the allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, must provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument (NY Crim. Proc. Law § 100.40(4)). People v. Born, 166 Misc 2d 353, 634 NYS2d 915and also Fitzpatrick v. Rosenthal, 29 AD3rd 24, 809 NYS2d 729 (4th Dep't 2006).
In determining Probable or reasonable cause reliable heresay that passes the Aguilar-Spinelli test must be considered.
The facts are:
On the night of the defendants arrest Sept. 25, 2006, he was served with two Uniform Traffic summons one charging a violation of VTL 1192 (3).
The second Uniform Traffic summons charging Refusal of a Breath Screening test in violation of VTL 1194(1B).
A Form entitled "Supporting deposition" was given to the defendant on the night of his arrest. That document related only to the charge of a violation of VTL 1192 (3))., The court concludes the supporting deposition related only to the DWI charge because it only States the TSLED number of the DWI Ticket and it further states on its face that it is being filed in connection with a violation of section 1192 of the Vehicle and traffic law.
It must be noted that it is entirely within the law to serve a supporting deposition even though it has not been requested along with a simplified information, express authority for this procedure is found in CPL section 100.20.
In this case attached to the form Supporting Deposition is a separate CPL 710.30 notice of intention to use admissions, dated 9/25/2005 in which the defendants and the Troopers initials appear in an acknowledgment of service.
No supporting deposition was served on the night of arrest for the violation of section 1194 "Refusal of a breath Screening Test" (That ticket was TSLED No. LV388449-5).
A supporting deposition was properly demanded in writing and filed with the court specifically referencing the fact that a demand was made with respect to the charge of VTL section 1194 (1) (B).
The Special Prosecutor does not in his papers contest the asserted fact that the demand for the supporting deposition was timely made and that none was ever filed or served. under TSLED # LV388449-5.
The supporting deposition served on the VTL 1192 violation under ticket number LV388448-4. was the fill in the box form that is in standard use by the New York State Police and contains a verification as required by law, Also attached thereto is a CPL 710.30 notice at paragraph nine which is not verified nor does the law require a 710.30 notice to be verified.
It is the well settled law that the accusatory instrument consists of the Simplified information and when demanded or served, the supporting deposition People v. Born, 166 Misc 2d 353, 634 NYS2d 915
The court may not go outside the four corners of the accusatory instrument to determine if "probable cause" is established sufficient to make the accusatory instrument sufficient on its face. see Fitzpatrick v. Rosenthal, 29 AD3rd 24, 809 NYS2d 729 (4th Dep't 2006)
This court ordinarily may not consider any material contained in the CPL 710.30 notice because that notice is not normally a part of the accusatory instrument nor is it verified in the manner required of a supporting deposition.
However the fact that the supporting deposition does state that there are oral admissions (Contained in the attached 710.30 notice) gives the court reason for considering whether this incorporation by reference of the unsworn 710.30 notice may properly be considered part of the accusatory instrument for purposes of determining the facial sufficiency of the accusatory instrument.
Recent decisions make it clear that if an arresting officer is relying on an informant for information the officer must recite facts sufficient to establish the identity of the informant and the reliability of the informant, in the supporting deposition (usually reffered to as the Aguilar-Spinelli test for reliability). See People v. Born, 166 Misc 2d 353, 634 NYS2d 915and also Fitzpatrick v. Rosenthal, 29 AD3rd 24, 809 NYS2d 729 (4th Dep't 2006).
In the case at bar the court must do a searching inquiry into the facts underlying the supporting deposition to determine if possible what observations the officer had personal knowledge of and what if any factual allegations had their origin in the unidentified informants. The court must also consider is the validity and effect of the incorporation of the unsworn 710.30 notice into the "Supporting Deposition" by reference.
It is clear to this court, that the check off form used by the State Police is entirely inadequate for use in assessing the factors required by Aguilar-Spinelli, when an arresting officer is relying on statements from informants to establish probable cause in the accusatory instrument.
The check off boxes do not provide adequately for information by which the court can determine the identity of the informant or judge effectively the reliability of the informant under the Aguilar-Spinelli Test. The continued use of that form in light of this decision and the decision in People v. Born, 166 Misc 2d 353, 634 NYS2d 915 and Fitzpatrick v. Rosenthal, 29 AD3rd 24, 809 NYS2d 729 (4th Dep't 2006) is a matter the New York State police should address internally by reviisng their form.
The court concludes as a matter law that the supporting deposition in this case charging a violation of VTL 1192 (3) under ticket #. LV388448-4 contains no information by which the court can determine anything about the identity of the informant or any way in which the court can assess the reliability of the informant.
References to the informant in the The supporting deposition where it clearly states at Paragraph 2, that the only reason for the stop was a civilian complaint will be stricken and not considered in determining "Probable Cause".
The supporting deposition further states that "other evidence was" "Civilian witnesses" likewise that statement will not be considered.
A. Simplified information may include non evidentiary reliable heresay to establish "Probable Cause". This leads the court to the inescapable conclusion that, certain heresay documents that pass the aguilar-spinelli test of reliability may properly be made a part of the "Supporting Deposition".
In light of the above conclusions an examination of the CPL 710.30 notice used in this case reveals that the individual to whom the admissions by the defendant were made was New York State Trooper Prestigiacomo and that fact is so stated in the notice. Trooper Prestigiaocmo is also the Trooper Complainant who signed the supporting deposition under oath. Therefore Trooper Prestigiacomo need not have established the reliability of himself (under Aguilar Spinelli) or his own ability to hear or observe the events in order to establish probable cause. He is clearly identified as the person who heard the admissions from the defendant.
The Trooper swore to the accuracy of the CPL 710.30 notice in the supporting deposition at paragraph 4 B. An Oral admission by a defendant is evidentiary and an exception to the heresay rule and it may be considered in establishing probable cause when the informant who heard the admission establishes his or her reliability and ability to observe or hear the events. Since officer Prestigiacomo himself heard the Oral admissions the court will consider the oral admissions as evidentiary facts, in determining if the accusatory instrument contains probable cause.
What the court now must consider is what the supporting deposition does say with respect to facts that the officer states under oath that he observed and are evidentiary or reliable heresay.
Those facts that the court finds relevant to the issue of "probable cause" are; that the officer states "that by direct observation" he saw the defendant at the wheel of a red Toyota, with the motor running and keys in the ignition on Country Club road in Catskill New York Greene County on Sept. 25, 2005.
Upon stopping the defendant (For whatever reason, assuming he was stopped) the defendant had an observable Odor of Alcohol, Glassy eyes and impaired motor coordination.
Field tests administered by Trooper Prestigiacomo revealed the defendant failed the Horizontal Gaze Nystagmus test, failed the walk and turn test failed the one leg stand test and refused the alphabet test.
Admission were made to Trooper Prestigiacomo at the scene by the defendant that are incorporated by reference and attached to the supporting deposition. Those admissions are that the defendant had been Driving, he also admitted to drinking "4 drinks which included white wine and a pint of beer" and refused a breath test.
The court need not concern itself with the issue of the legality for the stop or the arrest on Sept. 25, 2005 those matters are reserved for the probable cause hearings that have been ordered to commence on Sept. 12, 2006.
On this motion the court is only addressing the sufficiency of the accusatory instrument. The issue is Does the above facts that the court finds are in the accusatory instrument establish probable cause so as to render the accusatory instrument sufficient. The facts need not be established at this stage of the proceeding "Beyond a Reasonable Doubt" which is a much higher standard and is required for conviction after a trial.
The New York State statutory definition of "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay. CPL 70.10(2)
The appellate division has considered "probable cause" and its definition when applied to violations under section 1192 of the Vehicle and Traffic Law in People v. Farrell 89 AD2d 987 "Viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxication liquors" is a reasonable interpretation of the standard.
The Court of appeals has weighed in on the issue as follows "must (be) at least more probable than not that a crime has taken place and that the one arrested is the perpetrator" "Conduct equally compatible with guilt or innocence will not suffice" People v. Carasquilo 54 NY2d 248.
The court finds sufficient evidentiary facts recited on direct knowledge of the complainant Trooper which if true would establish "probable cause" and therefore the accusatory instrument is facially sufficient.
The accusatroy instrument charging a violation of V TL 1192 (3) is sufficient on its face.
The second branch of the motion seeks dismissal of the charge of "Refusing a Breath Screening Test" in violation of section 1194 (1B) of the VTL.
A supporting deposition must be served on defendant within thirty days after lawful demand is received by the court. see CPL section 100.25.
In this case it is not disputed that the written demand was made. This court has examined the court file and has found the demand in the court file file. The special prosecutor has not denied the essential facts of the demand for a supporting deposition and the fact that none was ever served or filed.
The demand was filed with the Catskill Town court on or about October 14, 2005 well within the thirty day period of Defendants arrest and first appearance. As a matter of law the request or demand was timely see CPL 100.25. It is not the responsibility of the defendant to insure that the court or the complainant Police officer comply with the demand.
What does matter is that a supporting deposition to supplement the simplified information charging a violation of section 1194 of the VTL be served on the defendant or his attorney within the thirty day period. There is no evidence that anyone to this date has complied with the demand, see People v. Nuccio, 78 NY2d 102.
Therefore the Simplified information charging a violation of section 1194 (1B) under TSLED # LV 388449-5 of the VTL is Dismissed This constitutes the decision and order of the court.