Opinion
20593
01-24-2013
The People of the State of New York, Plaintiff - Appellant v. Pete T. Shenandoah, Defendant, Respondent.
Appellant People of the State of New York, by Nicole M. Duvé, Esq., District Attorney, Jonathan Becker, Esq., of counsel
Appellant People of the State of New York, by Nicole M. Duvé, Esq.,
District Attorney, Jonathan Becker, Esq., of counsel
Jerome J. Richards, J.
The People appeal from a decision and order of the Canton Town Court (O'Horo, J.) entered on July 6, 2011, which dismissed four charges against defendant for failure to file supporting depositions.
On November 4, 2009 defendant was issued four uniform traffic tickets returnable in Canton Town Court, charging him with misdemeanor common law driving while intoxicated [VTL §1192(3)], misdemeanor per se driving while intoxicated [VTL §1192(2)], speed over 55 zone [VTL 1180B] and consumption of alcohol in motor vehicle [VTL 1227(1)]. The stop was made around 11:00 p.m. on November 3, 2009, and the tickets were issued on November 4, 2009. Record (hereafter abbreviated as R) pages 2 through 5. The stop was based on radar, the reading showing defendant was speeding on NY 11 at 74 m.p.h. and drinking while driving. Defendant allegedly failed field sobriety tests, and returned a breath test blood alcohol concentration reading of 0.08 of one per cent. Defendant also told Trooper Sutton that he had been smoking marijuana while driving the vehicle [incident report, R-11].
The tickets were returnable in Canton Town Court on November 18, 2009. Trooper Sutton prepared and presumably filed with the local court a supporting deposition for the speeding charge, affirmed on November 4, 2009 [R-6] and a signed but undated supporting deposition and bill of particulars for the driving while intoxicated charges. [R- 7-8]. The latter form does not indicate that a copy was served on defendant. Town Court's notes [R-23-24] has a checked arraignment memo box stating that copies were furnished to defendant at the February 2, 2011 arraignment. The memo does not specify what documents were included under the copies furnished' notation.
On the ticket return date, November 18, 2009, defendant did not appear [R-79]. While town court's decision of July 6, 2011 states that a long form information was requested and an arrest warrant was issued [R-23, 24, 79, 93-94], the People's brief [brief, page 6] states that on December 10, 2009 the court issued a bench warrant to arrest defendant. However, the copy of a bench warrant included in the record on appeal [R-27] is not signed by the court and is not dated. Nor is there any notation at the bottom that it was served by a police officer. The arrest warrant in the record [R-28] is signed by Justice O'Horo as Town Justice, and is dated December 10, 2009.
Defendant was arraigned on January 25, 2011, presumably on the arrest warrant. The court directed the appointment of counsel, and defendant again appeared, without counsel, on February 2, 2011 [R-23, 79]. Defense counsel filed a notice of appearance dated February 7, 2011 requested a supporting deposition, which the court ordered on February 9, 2011 [R-79]. Town Court's July 6, 2011 decision and order states that no supporting deposition was filed with the court, and notes that defense counsel said that none was ever served on defense counsel. The court decision further notes that no supporting depositions were ever served on defendant or his attorney, although the court did note the filing with the court of a DWI supporting deposition and bill of particulars. Based on the People's failure to serve the supporting depositions either on defendant or his attorney, the court dismissed the charges [R-80].
The People's first argument on appeal is that defense counsel's February 7, 2011 request for a supporting deposition was time-barred under CPL §100.25(2) and People v. Tyler, 1 NY3d 493 [2004]. Specifically, the People aver that defendant had a statutory right to file a demand for a deposition within thirty days of his first scheduled appearance in local court. As the People note, under CPL §100.25(3) the thirty day demand period may be extended for not more than an additional sixty days upon a showing of good cause. The People further note, correctly, that 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 [Suffolk Dist Ct 1995].
The People's second argument is that Town Court's order for a supporting deposition was redundant, and also untimely, because the previously-mentioned depositions had already been filed. The People's brief [Brief, 10] cites to R-2 - 17 as the basis for this conclusion. That conclusion is supported by Town Court's notation in the arraignment memo that copies had been furnished to defendant. That filing, though, does not establish compliance with Town Court's order to serve and file a supporting deposition.
The People's third argument asserts that CPL §100.25 was not unconstitutional as applied to defendant, despite the local court's holding to that effect [R-79]. Defense counsel had argued that the statute was unconstitutional as applied because it denied defense counsel appearing after the thirty-day demand period the chance to discover the basis for the stop and the arrest. The People note, correctly, that defense counsel's time in which to demand a bill of particulars or discovery extends for thirty days after counsel's appearance, citing CPL §100.45(4), 240.80(1) and 200.95(3). The court agrees with the People that the provisions relating to a demand to produce and for a bill of particulars provide the functional equivalent of the information which would be contained in a supporting deposition. Hence, there is no unconstitutional application of the thirty-day deposition rule arising out of the fact that defendant was not at that time represented by counsel.
A uniform traffic ticket is "merely an appearance ticket' pursuant to CPL §150.10, see People v. Tyler, 1 NY3d 493, 494 [2004], whereas a simplified traffic information is an accusatory instrument' pursuant to CPL §100.10(2)(a)." Gerstanzang & Sills, Handling the DWI Case in New York (2012-2013 Edition) §17:8, pp. 511-512. Also noting that a Uniform Traffic Ticket is not the same thing as, and is not identical to, a simplified traffic information, Gerstanzang & Sills cite Professor Preiser's Practice Commentaries to McKinney's Cons Laws of NY, Book 11A, CPL §150.10, at 564, where Preiser states that "[T]he accusatory instrument is prepared at the same time as the ticket by filling out different parts of a carbonized multi-part form. One part is served upon the person summoned to appear (e.g., the operator of the vehicle) and another part will be filed with a local criminal court. The part served upon the motorist is an appearance ticket and the part filed with the court is an accusatory instrument; to wit, a simplified information (see CPL §100.25 and Practice Commentary thereon)."
In the Practice Commentary to CPL §100.25, Professor Preiser makes several observations which are helpful to analysis of the present case:
"A simplified information commences a criminal action and is jurisdictionally sufficient for prosecution of the action; but only if it is issued in the prescribed form by an officer authorized to do so (CPL §§1.20[5], 100.10[2]; People v. Shapiro, 61 NY2d 880...[1984]). Since a simplified information does not establish reasonable cause, it cannot serve as the basis for a warrant of arrest. If defendant does not appear, an information would be filed to obtain a warrant of arrest or a summons.
*****
"Due to the lack of evidentiary facts in a simplified information, the Legislature has given defendants the right to demand a deposition that sets forth sufficient facts to establish reasonable cause (not a case) prior to trial. It is interesting to note though, that in cases where the facts tend to fit a fairly standardized pattern, e.g. a driving while intoxicated charge — the requirement for a supporting deposition can be satisfied by making check marks on a form in boxes next to preprinted statements of potentially applicable police officer observations and subscribing and verifying same. This entitlement to a supporting deposition does not give the defendant a right to require the officer to state therein, in his own words, what his observations and conclusions are.' People v. Hohmeyer, 70 NY2d 41...[1987].
*****
"Subdivision two now provides that, as a general rule, request for the deposition can be made only within thirty days after the date specified in the ticket for appearance in court, as distinguished from the date the defendant actually appeared in person, or pled by mail and received notice of the right to the deposition. In order to foreclose claims of ignorance regarding the time limit for the right to request a supporting deposition, the appearance ticket must contain notice of the right and the thirty day limitation (see subd. 4)." Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, §100.25, at 366-367.
Here the simplified information portions of the four Uniform Traffic Tickets have no check mark in the box where a motorist may request a supporting deposition, and each is checked in the box indicating that no supporting deposition was provided when the ticket was issued [R-2-5]. Each ticket bears the required statutory notice of the right to request a supporting deposition within thirty days.
The supporting deposition/CPL 710.30(1)(A) notice and DWI bill of particulars [R-6-R8] were in proper form, were dated and subscribed and verified, and therefore furnished a sufficient basis for prosecution [CPL §100.25(2)] and also contained sufficient sworn allegations of evidentiary facts through the checked box observations of the arresting officer, to support reasonable suspicion for the issuance of the arrest warrant. People v. Hohmeyer, 70 NY2d 41 [1987]. Despite the absence of a long form information from the record, defendant's re-arrest pursuant to the arrest warrant after he failed to appear on the ticket return date was valid. The simplified informations were sufficient to commence the prosecution and complied with the requirements of CPL §100.25(2). In effect, there was no legal consequence arising from the People's failure to file additional supporting depositions, since the ones filed with the accusatory instrument were timely and legally sufficient. 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.
The order of dismissal entered July 6, 2011 was entered on legally invalid grounds, and is therefore reversed on the law and the facts, and the simplified informations are re-instated. The case is remitted to the Canton Town Court for further proceedings consistent with this order, including re-assignment of defense counsel and ordering that defendant be produced before the court for such further proceedings in due course. So ordered.
ENTER.
Dated: January 24, 2013
____________________________________
JEROME J. RICHARDS
Judge of County Court
Hon. Nicole M. Duvé, District Attorney
Canton Town Court
Office of the Public Defender
Clerk of Supreme & County Courts