Opinion
No. 2022-350 S CR
07-25-2024
The People of the State of New York, Respondent, v. Eric Vandewater, Appellant.
Scott Lockwood, for appellant. Suffolk County District Attorney (Michelle Kaszuba and Glenn Green of counsel), for respondent.
Unpublished Opinion
Scott Lockwood, for appellant. Suffolk County District Attorney (Michelle Kaszuba and Glenn Green of counsel), for respondent.
PRESENT: TIMOTHY S. DRISCOLL, J.P., JAMES P. McCORMACK, ELENA GOLDBERG-VELAZQUEZ, JJ
Appeal from a judgment of the Justice Court of the Village of Head of the Harbor, Suffolk County (Ellen Fishkin, J.), rendered April 15, 2021. The judgment convicted defendant, after a nonjury trial, of violating Vehicle and Traffic Law § 375 (28-f) (f), and imposed sentence. The appeal from the judgment of conviction brings up for review an order of that court dated October 22, 2020 denying defendant's motion to dismiss the simplified traffic information as facially insufficient.
ORDERED that the judgment of conviction is reversed, on the law, the order denying defendant's motion to dismiss the simplified traffic information as facially insufficient is vacated, defendant's motion is granted, and the fine imposed, if paid, is remitted.
Defendant was charged in a simplified traffic information with a "VIOLATION OF: (SECTION AND SUBDIVISION) 37528FAF." The simplified traffic information described the violation as "NYS emission violation - No cat[alytic] converter installed." A supporting deposition was provided by the police officer who issued the ticket, wherein he stated that defendant had operated a motor vehicle on a public roadway "without [a] required exhaust emission control device (catalytic converter) installed and in proper working condition." Defendant subsequently moved to dismiss the simplified traffic information as being facially insufficient. The People opposed the motion and, in an order dated October 22, 2020, the Justice Court denied it. Following a nonjury trial, the court found defendant guilty and sentenced defendant to a fine of $750.
Based on the entire record that is before this court, we interpret the simplified traffic information as charging a violation of Vehicle and Traffic Law § 375 (28-f) (f). A simplified traffic information is sufficient on its face when it substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25 [1]; 100.40 [2]; People v Ramos, 77 Misc.3d 132 [A], 2022 NY Slip Op 51243[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Ferro, 22 Misc.3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). Additionally, pursuant to CPL 100.25 (2), if a deposition submitted in support of a simplified information is provided by a complainant police officer, whether voluntarily or upon request, it must contain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense charged (see People v Hohmeyer, 70 N.Y.2d 41, 42-44 [1987]; People v Key, 45 N.Y.2d 111, 116-117 [1978]; People v Anand, 65 Misc.3d 151 [A], 2019 NY Slip Op 51875[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Delprete, 62 Misc.3d 128 [A], 2018 NY Slip Op 51872[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). The failure to file a sufficient supporting deposition renders the simplified traffic information "insufficient on its face" (CPL 100.40 [2]; see Delprete, 2018 NY Slip Op 51872[U]), subjecting it to dismissal upon motion (see CPL 170.30 [1] [a]; 170.35 [1]; Anand, 2019 NY Slip Op 51875[U]). Here, since, prior to trial, defendant moved to dismiss the simplified traffic information on facial insufficiency grounds, the issue of whether the supporting deposition contained adequate factual allegations to support the simplified traffic information was not waived (see CPL 170.30 [3]; People v Beattie, 80 N.Y.2d 840 [1992]; Key, 45 N.Y.2d at 116-117; Anand, 2019 NY Slip Op 51875[U]; Delprete, 2018 NY Slip Op 51872[U]).
Even if were to interpret the accusatory instrument as charging a violation of Vehicle and Traffic Law § 375 (28-f) (a-f), the result herein would be the same.
Vehicle and Traffic Law § 375 (28-f) (f) provides (emphasis added):
"No registered owner shall permit a motor vehicle, required to have an exhaust emission control device in proper working condition pursuant to the provisions of this subdivision, to be operated in the portion of the state to which this subdivision is applicable, unless such vehicle is equipped with an approved exhaust emission control device in proper working condition."
Paragraph (a) of subdivision 28-f of Vehicle and Traffic Law § 375 provides in pertinent part (emphasis added):
"Except where inconsistent with federal law, rules and regulations, in addition to any air contaminant emission control systems required by subdivisions twenty-eight-b and twenty-eight-c of this section, the commissioner of environmental conservation may by regulation require the installation of exhaust emission control devices in proper working condition on all or any vehicles of any class or classes of gasoline powered motor vehicle having a registered maximum gross weight in excess of six thousand pounds."
Here, the supporting deposition failed to set forth facts providing reasonable cause to believe that defendant had violated Vehicle and Traffic Law § 375 (28-f) (f) (see CPL 70.10 [2]; 100.25 [2]; see generally Anand, 2019 NY Slip Op 51875[U]; Delprete, 2018 NY Slip Op 51872[U]), as the complaining officer alleged no facts demonstrating that the vehicle that defendant had been operating had a registered maximum gross weight in excess of 6,000 pounds (see Vehicle and Traffic Law § 375 [28-f] [a]). Consequently, the simplified traffic information was rendered "insufficient on its face" (CPL 100.40 [2]; see CPL 100.25 [2]) and should have been dismissed upon defendant's motion (see Delprete, 2018 NY Slip Op 51872[U]).
Accordingly, the judgment of conviction is reversed, the order denying defendant's motion to dismiss the simplified traffic information is vacated, and defendant's motion is granted.
DRISCOLL, J.P., McCORMACK and GOLDBERG-VELAZQUEZ, JJ., concur.