Opinion
# BD8391154
03-10-2014
People of the State of New York, Plaintiff, v. Saman Moeirzadeh, Defendant.
, J.
This matter comes before the Court by Motion of Defendant for an Order to dismiss the above five (5) Simplified Traffic Information / Complaints pursuant to the New York State Criminal Procedure Law ("CPL") Section 170.30 (1)(a) and CPL. Section 100.40(2) on the grounds that the timely served supporting depositions fail to set forth "factual allegations of an evidentiary character" and are legally insufficient and defective within the meaning of CPL Section 170.35(1)(a).
For the reasons stated below, the Court has decided the motion based upon the time limitations imposed by and set forth in CPL Section 100.25 (2) and CPL Section 100.25 (3) which are applicable to this case, and has further rendered its decision in the interest of justice and to afford the defendant appropriate due process of law under the particular facts of this case.
Summary of the Background and Facts:
The five Simplified Traffic Information / Complaints (Appearance Tickets) (hereinafter referred to as the "Tickets") were issued to the defendant on June 6, 2013 by a police officer of the Kings Point Police Department. Ticket # BD8391154 was issued for an alleged violation of Section 1126 A of the Vehicle and Traffic Law ("VTL") for "driving to the left of pavement markings (No passing)"; Ticket # BD8391165 was issued for an alleged violation of Section 1128 A of the VTL for "moved from lane unsafely"; Ticket # BD8391176 was issued for an alleged violation of Section 1129 A of the VTL for "Following to Closely"; Ticket No. BD8391180 was issued for an alleged violation of Section 1180 A of the VTL for "Speed not reasonable and prudent"; and Ticket # BD8391191 was issued for an alleged violation of Section 1212 of the VTL for "Reckless Driving". Each of the tickets issued, except for the ticket issued under Section 1212 of the VTL is for a traffic violation. The ticket issued under Section 1212 for the alleged violation of "Reckless Driving" is a misdemeanor.
Each of the tickets was issued on the standard Simplified Information / Complaint (Appearance Ticket) form of the Commissioner of Motor Vehicles, and which on the reverse side of the ticket, contained language in Section B- Plea of Not Guilty, which was the statutory notice language set forth in CPL Section 100.25 (4). The statutory notice language required that any request for a supporting deposition had to be made within thirty (30) days from the date the defendant was directed to respond to the court noted on the face of the front side of the ticket. That date was July 10, 2013.
The defendant failed to appear on the scheduled appearance date on July 10, 2013. On July 26, 2013 the Court sent a letter to the defendant notifying him of his failure to appear at the scheduled Arraignment date of July 10, 2013 and notifying the defendant of a re-scheduled Arraignment date for him to appear on August 7, 2013. On August 7, 2013, the defendant again failed to appear for Arraignment, and thereafter on August 9, 2013, the Court sent another letter to defendant indicating that defendant failed to appear
On August 12, 2013, the defendant's brother, Hootan Moeirzadeh called the court and advised the Court Clerk that on June 11, 2013 the defendant had been involved in a severe car accident whereby the defendant, who was a pedestrian and was not driving, was hit by a vehicle and suffered severe injuries. Defendant's brother indicated that the defendant had suffered multiple injuries sustained in the vehicle accident which included head injuries and orthopedic fractures. The Court Clerk advised Defendant's brother, that the tickets issued against his brother Saman Moeirzadeh were serious and that either his brother should enter a plea by mail or he should consider retaining an attorney to represent him in the matter.
Thereafter, defendant's brother wrote a letter to the Court dated August 12, 2013 to advise in writing that his brother had "many injuries including brain, legs, broken body parts, etc He is currently in the Hospital and has been in the hospital since the accident and he is still being treated for everything at the hospital." The letter went on to state: "I would respectfully ask the court and the Judge to extend Saman's cases to sometime to 2014 as [he] has a long recover[ry] going forward. Please understand his situation."
Included with the letter from Mr. Hootan Moeirzadeh were copies of two letters to support his claim that his brother had been injured in the car accident, which included a letter dated August 6, 2013 from a medical doctor (Physiatrist) on North Shore LIJ hospital stationary indicating that Saman Moeirzadeh was admitted to North Shore Glen Cove Hospital's Brain Injury Unit on August 1, 2013 with a diagnosis of Traumatic Brain Injury, after being involved in a motor vehicle accident on June 11, 2013 and having been initially admitted to Winthrop Hospital and then transferred to North Shore LIJ. The letter further stated that the defendant suffered a brain injury and was receiving physical therapy, occupational therapy, and speech therapy through the brain injury program and that he was expected to remain at the hospital until the foreseeable future. The second letter forwarded to the Court by Mr. Hootan Moeirzadeh was dated August 9, 2013, and was from a second medical doctor, and was written on stationary from North Shore LIJ, Glen Cove Hospital which essentially stated that the defendant was currently hospitalized for traumatic injuries sustained after an accident occurring on June 12, 2013, and that due to mobility and cognitive impairments sustained from his injury, he was currently disabled and unable to ambulate or manage his daily activities without assistance.
Thereafter on August 15, 2013 the Court was in session, and the Court Clerk, in open court, brought to the attention of the Judge and the Kings Point Village Prosecutor the situation concerning the defendant having been severely injured, and the defendant's brother's request that the defendant be able to extend the time for him to appear in court to sometime in 2014. The People had no objection, other than noting in the record that the adjournment was at the request of the defendant and not the people.
The Court Clerk then wrote a letter addressed to the defendant dated August 20, 2013 indicating that in order not to suspend the driver's license of the defendant the defendant must enter a plea which would be accepted by mail. The letter included copies of each of the five summonses in the event he could not find a copy of the original summonses, and noted also the language of entering a plea by mail. The letter went on to state the court wanted written documentation every thirty (30) days from the defendant or his doctors as to his health condition and rehabilitation. Furthermore the letter indicated that upon receipt of the not guilty plea, the court will hold this matter open until a court appearance in January 2014 of which defendant would be notified by mail.
Subsequent to the forwarding of the August 20, 2013 letter by the Court to the defendant, there was no response from the defendant with regard to entering a plea by mail. However, on September 30, 2013 the Court received a letter dated September 23, 2013 from a Social Worker, on stationary of the Park Avenue Extended Care Facility in Long Beach, New York, indicating that the defendant was currently a patient at the Park Avenue Extended Care Facility and had been admitted there on August 30, 2013 after being transferred there by North Shore University Hospital Glen Cove Acute rehab. The letter indicated that the defendant was admitted to Park Avenue Extended Care Facility for sub-acute rehabilitation and defendant was under medical care. The letter further indicated that the defendant was currently unable to walk by himself and was unable to leave the facility.
There was no further word from the defendant until, on November 5, 2013 the Court received a letter from Jeanne Marie Beckmann, Esq, of Jeanne Marie Beckmann, P.C. indicating that she was filing a Notice of Appearance and was submitting copies of the summonses for the referenced matters which were the five (5) tickets issued to the defendant. The letter requested that a "Not Guilty" plea be entered for her client. The letter went on to say that her client was totally disabled and was unable to appear in Court, and that he was a patient at Park Avenue Extended Care Facility in Long Beach for "at least another month". The letter also referenced and enclosed a letter of October 28, 2013 from a social worker at Park Avenue Extended Care Facility which indicated that the defendant had been admitted to that facility on August 30, 2013 for sub-acute rehabilitation, and that the defendant was "currently on short term rehabilitation and projected to remain for one month more". Also enclosed in the envelope was the Notice of Appearance signed by Ms. Beckmann entering the defendant's plea of "Not Guilty". Ms. Beckmann also enclosed copies of each of the tickets, and on the back of each ticket in the Plea area for "Not Guilty" she blacked in the "Yes" box requesting a supporting deposition, and she stamped the signature area of the Not Guilty box with a rubber stamp containing her name and address. She did not sign the back of the ticket in the place where the request for the supporting deposition should be signed, nor did she fill in the date of the request, both of which were blank.
The Court Clerk then processed the Notice of Appearance and the Not Guilty pleas, andforwarded a request from the Court to the police officer who had originally issued the tickets (such request being dated November 5, 2013) requesting him to complete a Supporting Deposition for each of the tickets. Thereafter, the police officer completed and mailed out the Supporting Depositions for each of the tickets with a date of November 12, 2013.
After receipt and review of the Supporting Depositions, defendant's counsel then made the instant motion dated November 25, 2013 to dismiss each of the tickets pursuant to CPL Sections 170.30(1)(a) and 100.40(2) on the grounds that the supporting depositions fail to set forth "factual allegations of an evidentiary character" and are legally insufficient and defective within the meaning of CPL Section 170.35(1)(a).
Discussion of the Applicable Law
CPL Section 100.10(2)(a) provides that a simplified traffic information is a written accusation by a police officer that is filed with a local criminal court, that charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the Commissioner of Motor Vehicles, designates the offense or offenses charged, but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as the basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information. Under circumstances prescribed in CPL Section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.
Under CPL Section 100.25 (1), a simplified information must be substantially in the form prescribed by the Commissioner of Motor Vehicles; Under CPL Section 100.25 (2), a defendant charged by a simplified information is "upon a timely request" entitled as a matter of right to have filed with the court and served upon the defendant or their attorney, a supporting deposition of the complainant police officer containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged. To be timely, such a request "must, except as otherwise provided herein and in subdivision three of this section, be made before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty 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." (Emphasis added). Upon such a request, the court must order the complainant police officer to serve a copy of such supporting deposition with the court together with proof of service to the defendant or the defendant's attorney, as the case may be.
CPL Section 100.25 (3) states that when one of the offenses charged in a simplified information is a misdemeanor, the court "may, upon motion of the defendant, for good cause shown and consistent with the interest of justice, permit the defendant to request a supporting deposition beyond the thirty day request period set forth in subdivision two of this section provided, however, that no motion may be brought under this subdivision after ninety days has elapsed from 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." (emphasis added).
Application of the Law to the Facts of this Case
In the within matter, the simplified traffic information which is the basis for the prosecution, is not under attack by the defendant, nor is the time period in which the police officer forwarded the requested supporting deposition. What is being challenged by the defendant is defendant's claim that the supporting depositions fail to set forth "factual allegations of an evidential character" and are legally insufficient and defective within the meaning of CPL 170.35(1)(a). Without reaching any conclusion as to whether or not the depositions are legally sufficient, or that they fail to set forth factual allegations of an evidential character, the Court's decision herein is based upon the Defendant's failure to submit a "timely request" for the supporting depositions in the first place, and that the submission of the request for the supporting depositions after the applicable statutory time periods is in effect of no legal consequence and should be considered a nullity as the defendant had no right to the depositions under the explicit language of the CPL. Where the defendant has not made a timely request for the supporting depositions, the defendant has not complied with the time periods required by CPL 100.25 (2) or CPL 100.25 (3).
In the instant case, since each Ticket contained the statutory language for the notice provisions set forth in CPL 100.25 (4) on the back of the ticket in the place to enter a plea of "Not Guilty", the defendant was therefore required to file the request for a supporting deposition within thirty (30) days after the date first set forth in the Tickets to appear in court which was July 10, 2013. As such, any request for the supporting depositions had to be made by August 9, 2013. No such request was made by the defendant by August 9, 2013. However, in view of the fact that one of the Tickets was a misdemeanor offense under Section 1212 of the VTL, the defendant, under CPL 100.25 (3), having missed the thirty (30) day requirement to request the supporting deposition, still could have made a motion to the court for good cause shown, and consistent with the interest of justice to request a supporting deposition for all of the tickets (because one of the tickets was a misdemeanor charge) beyond the thirty (30) day period set forth in CPL 100.25 (2), but not greater than ninety (90) days after the date first set forth on the Tickets to appear in Court. CPL 100.25 (3) provides" no motion may be brought under this subdivision after ninety days has elapsed from 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." (Emphasis added). The ninety (90) day period in which the defendant could still have made a motion to the court, for the court to consider for good cause shown and in the interest of justice, ended by the court's calculation on October 8, 2013. No such motion to the court was made by the defendant by that date, so defendant is time barred by the specific language of the applicable statute (CPL 100.25 (3) from making any motion to receive a supporting deposition after October 8, 2013.
As noted above, defense counsel only filed her Notice of Appearance by her letter and Notice of Appearance which was received by the court on November 5, 2013. In addition, defense counsel ignored the statutory time periods set forth in CPL 100.25 (2) and CPL 100.25 (3) and merely rubber stamped her request for a supporting deposition on the back of the Tickets without signing or dating the request on the back of the Tickets and submitted them to the court with her Notice of Appearance. Such a request, as a matter of law was insufficient and time barred by clear statutory language and the time bar effect the legislature was trying to achieve by enacting the 1996 Amendments to those specific statutes. In addition, the fact that the Court Clerk sent the request for the supporting deposition to the police officer, and the police officer completed the supporting deposition and mailed it out to the defense counsel on November 12, 2013 is in effect a nullity and should carry no legal consequence. (See People v Shenandoah, County Court of New York, St. Lawrence County, 38 Misc 3d 1219(A); 967 N.Y.S.2d 869; 2013 NY Misc. LEXIS 395; 2013 NY Slip Op 50155 (U) decided January 24, 2013 where the court stated: "Defendant's demand for a supporting deposition came after the thirty day time limit expired and, therefore, also carried no legal consequence, despite the court's order that depositions be provided.")
Before 1996, a request for a supporting deposition was timely if made within a specified period generally 30 days, measured from the date a defendant first appears in court for arraignment. However, in order to foreclose claims of ignorance regarding the time limit, and to prevent the anomaly of affording more time to request a supporting deposition to those who scoff at the law than to those who abide by it and appear in court as required, the legislature amended CPL 100.25 effective October 20, 1996 so as to require that certain language be included in the appearance ticket as set forth in CPL 100.25 (4). In effect, this provided that so long as the required language is included in the appearance ticket, the time to request a supporting deposition runs from the date a person is first directed to appear in court, regardless of when he or she actually does so. (see People v Gomez, 25 Misc 3d 1235 (A); 906 N.Y.S.2d 774 2009 NY Slip Op 52422 (U); 2009 NY Misc LEXIS 3234 (Nassau Co. Dist. Ct. 2009)and see also People v Scherbner 2008 NY Slip Op 28296; 21 Misc 3d 251; 863 N.Y.S. 2d 352; 2008 NY Misc. LEXIS 4727.
Numerous courts have also previously ruled on the issue that a "timely request" must be made not later than thirty days after the date on which the defendant was directed to appear in court. For example, see People v Tyler, Court of Appeals of New York, 1 NY3d 493 (2004); 808 N.E. 2d 334; 776 N.Y.S.2d 199; 2004 NY LEXIS 537; see also: People v Guerrerio, 181 Misc 2d 517 (Justice Court Village of North Hills, 1999);, People v Garrido-Sanchez, 39 Misc 3d 137(A), 2012 NY Slip Op 52468(U),(App Term, 9th & 10th Judicial Districts, 2012), and People v Finklea 2013 NY Slip Op 23304 (App Term, 2d Dep't, 2013) 41 Misc 3d 41. In addition, the thirty day demand period is not affected by, or extended based on the timing of defense counsel's appearance in the case. (See People v Sperling, 165 Misc 2d 1024, 631 N.Y.S. 2d 221 (Suffolk District Court, 1995),
In her reply to the People's Opposition, defense counsel makes the argument that under the circumstances of the defendant having sustained severe physical injuries and brain injuries in the unfortunate pedestrian — car accident that occurred on June 11, 2013 and which disabled her client, that the thirty (30) day time limitation in which the defendant was required to request the supporting deposition was "tolled" by his incapacity and severe injuries . The legal authority she sites for the concept of tolling of the thirty (30) day time frame is CPLR Section 208. However that section of the CPLR specifically tolls the statute of limitations for the commencement of an action when the plaintiff is an infant or suffers from insanity. CPLR Section 208 is not applicable to the instant case, as by its terms it does not operate to extend or toll other time limitations imposed by law, and is related solely to civil matters, and does not apply to criminal matters. In addition, defense counsel provides no authority to sustain her claim on behalf of the defendant, that CPLR 208 tolled his time under CPL 100.25 (2) or CPL 100.25 (3) to request a supporting deposition. As such, the court gives no credence to CPLR Section 208 having any bearing on the instant matter.
However, defense counsel does bring out an important issue in the unique circumstances and facts of this case, that does have bearing on this matter, although not covered by the relevant statutes. She requests that the tickets be dismissed "in the interest of justice" and also she argues that the Village of Kings Point and the New York State Legislature could not have intended that unrepresented, unconscious and otherwise incapacitated medical patients forfeit rights they are unable to exercise for themselves. She describes the defendant as being in a coma for weeks, unconscious, on a breathalyzer, and who suffered traumatic brain injury and was not able to speak or function. She indicated that the defendant fractured his neck, ribs, clavicle, legs, herniated discs, etc. She also submitted what she described as the "first inch" of medical records attesting to the injuries. She goes on and states in her Reply to Opposition that "Saman Moeirzadeh was in a coma and when he came out of it, was unable to communicate or physically function. He was still bedridden in the Park Avenue Extended Care Facility when I was retained. The time limitation in which he was required to request the deposition was "tolled" until the return of the defendant's capacity or representation of counsel."
The Court has had the opportunity to review the copies of the defendant's medical records submitted by defense counsel for review. The Court acknowledges, based upon the information submitted, the severity of the medical conditions described in those records and that the defendant was incapacitated for an extended period of time beginning five (5) days after the Tickets were issued, between June 11, 2013, which extended past October 8, 2013, which was the last date to make a motion under CPL 100.25 (3). Furthermore, subsequent to the receipt by the Court of defense counsel's Reply to Opposition, the Court received a letter from the People dated January 31, 2014, a copy of which was forwarded by the People to defense counsel. Defense counsel was also subsequently contacted by the Court Clerk to find out if she wanted to or was going to submit any response to the People's letter dated January 31, 2014, and she indicated that she would make no further response.
The People's letter indicated that although the defendant has not demonstrated any applicable statutory or other applicable basis for the Court to extend the thirty (30) day time limitation of CPL 100.25 (2) to request a supporting deposition, nevertheless the People were not seeking to deprive the defendant of a meaningful opportunity to prepare a defense to the simplified traffic informations, especially in light of the serious injuries sustained by the defendant during the relevant period. The letter went on to say that although the People maintain that the defendant's request for supporting depositions was untimely, in the unusual circumstances of this case, the People would not oppose an order directing the service of new supporting depositions within thirty days of the order deciding the defendant's motion.
The Court agrees with this approach, which was also the approach adopted in People v Scherbner, 21 Misc 3d 251 (Justice Ct of Muttontown, 2008). There, the court determined, based upon the circumstances in that case, that the thirty (30) day limitation of CPL 100.25 (2) had "technically expired" but also concluded that "leaving the matter at that would not be a satisfactory result," 21 Misc 3d at 258. The court held that CPL 100.25 should be applied in a manner and with an obligation to assure that due process is accorded to all defendants. The court stated: "Thus even if the right to a supporting deposition has technically expired, the court should exercise its judgment in appropriate circumstances to assure that the defendant is not deprived of his/her ability to prepare a meaningful defense to the charge." Later in the courts opinion, the court states: "Therefore, in the interest of justice, the court exercises its jurisdiction and discretion to require that the People now supply the equivalent of a supporting deposition to the defendant within 30 days of receipt of the order, failing which this case will be dismissed."
The People's letter of January 31, 2014 also indicated that the resolution of the defendant's motion by the Court finding that the defendant's request for the supporting deposition was untimely, while granting relief to aid the defendant's trial preparation would serve the interests of justice.
Decisions of the Court
Based upon the above discussions of the facts, the law and the application of the law to the facts of this case, and in the interest of achieving "justice" in the unusual circumstances surrounding the facts of this case, the Court rules as follows:
1.The defendant's Motion to Dismiss the five (5) Tickets is hereby denied based on the failure of the Defendant to timely request the supporting depositions as required by CPL 100.25(2) and the failure to make any motion to the Court pursuant to and within the ninety (90) day time period afforded by CPL 100.25(3);
2.The defendant's request for supporting depositions made by defense counsel on November 4, 2013 received by the Court on November 5, 2013 was time barred by the specific time limitations set forth in CPL 100.25 (2), and there was no motion for relief under CPL 100.25 (3) that could have been made after October 8, 2013. As such Defendant's request for supporting depositions in the manner and at the time requested on November 4, 2013 was legally insufficient and should be considered a legal nullity. Since the request was improper at the time made, the forwarding by the Court to the police officer and the subsequent response and submission by the police officer of his supporting depositions dated November 12, 2013 to defendant's counsel was legally incorrect. As such, the Court orders that the supporting depositions dated November 12, 2013 issued for each of the Tickets be stricken from the court records for the Tickets; and
3.Based upon the unusual factual circumstances of this particular case, with the defendant having suffered traumatic brain injuries, and other debilitating and severe physical injuries, that have been duly documented by defendant, which by their severity interfered with defendant's ability to respond timely to request supporting depositions within the time periods required by CPL 100.25(2) or to make any motion to the Court within the time period required by CPL 100.25(3), and in order to afford the defendant due process of law, and in the interest of justice, the Court orders that within thirty (30) days of the date of this decision, the People serve upon the defendants counsel, the equivalent of new supporting depositions for each of the five (5) Tickets, and file a copy of the new supporting depositions with the Court. Such new supporting depositions shall comply with all statutory requirements and all rights are preserved by defendant with regard to making future objections provided by law with regard to the new supporting depositions, that may be applicable.
SO ORDERED
______________________________________
Gary C. Granoff, Village Justice
Dated: March 10, 2014
Kings Point, NY