Opinion
Docket No. CR-029116-21SU
06-27-2022
People of the State of New York v. Meredith Ventura, Defendant
Raymond A. Tierney District Attorney of Suffolk County Gavin O'Brien / Of Counsel Michael J. Brown, Esq. Attorney for Defendant
Unpublished Opinion
Raymond A. Tierney
District Attorney of Suffolk County
Gavin O'Brien / Of Counsel
Michael J. Brown, Esq.
Attorney for Defendant
HON. ERIC SACHS, J.D.C.
Upon the following papers read on these motions for omnibus relief: Notice of Motion/xxxxxxxxxxxxxxx and supporting papers X; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers X; Replying Affidavits and supporting papers X;Filed papers; Other Exhibits X; Certificate(s) of Compliance X; (and after hearing counsel in support of and opposed to the motion) it is, ORDERED that this omnibus motion by the defendant is decided as follows: The defendant's motion to dismiss three accusatory instruments as legally insufficient is GRANTED. The defendant's motion to strike the CoC/SoR is DENIED. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of her statutory speedy trial rights is DENIED. The People's motion to preclude further motions by the defendant is DENIED, subject to the requirements set forth in CPL § 255.20(3).
On November 6, 2021, the defendant was arrested and charged [Docket No. CR-029116-21SU] with one count of Driving While Intoxicated in violation of New York State Vehicle and Traffic Law ("VTL") § 1192.3, an unclassified misdemeanor, and Reckless Driving in violation of VTL § 1212, an unclassified misdemeanor, along with seven traffic infractions. She was arraigned on November 7, 2021.
On December 24, 2021, the defendant was separately arrested and charged [Docket # CR-032972-21SU] with one count of Driving While Intoxicated in violation of VTL § 1192.3. The instant motion, filed under Docket # CR-029116-21SU, does not appear to be addressed to that charge.
By motion dated March 23, 2022, the defendant moves this court [under Docket # 029116-21SU] for an order (1) dismissing three informations as legally insufficient; (2) striking the CoC/SoR; and (3) dismissing the accusatory instruments based upon an alleged violation of her statutory speedy trial rights. Each argument is addressed in turn, below.
A. Legal Sufficiency of Three Simplified Traffic Informations
A simplified traffic information is "a peculiar form of accusatory instrument-an unverified one (see CPL 100.30[1][d])-that is authorized in limited, statutorily specified cases as an alternative to prosecution by long form information." People v Peraza, 25 Misc.3d 1201(A), 899 N.Y.S.2d 62 [Dist Ct, Nassau Cnty 2009].
In general, 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). Additionally, if a supporting deposition of a complainant police officer is provided, 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 or offenses charged." CPL § 100.25(2). See also People v Hohmeyer, 70 N.Y.2d 41, 42-44 [1987]. The failure to file a sufficient supporting deposition renders the simplified traffic information insufficient on its face (see CPL § 100.40(2)), subjecting it to dismissal upon motion (see CPL § 170.30(1)(a); § 170.35(1)).
Courts have noted that "[p]rosecutions by simplified traffic information are governed by standards somewhat different from those applicable to prosecutions by long form information, the most notable being that pleading requirements are far less factually demanding." People v Peraza, 25 Misc.3d 1201(A), 899 N.Y.S.2d 62 [Dist Ct, Nassau Cnty 2009] [citing People v Nuccio, 78 N.Y.2d 102, 571 N.Y.S.2d 693 [1991]]. Moreover, courts have upheld supporting depositions where the officer's factual narrative rendered it "reasonably likely" that the defendant committed a violation of the VTL. Id.
Here, the defendant contends that the supporting depositions provided by the officer with respect to three simplified traffic informations [VTL § 1128(a), VTL § 1129(a), VTL § 1194(1)(b)] are insufficient as a matter of law, and therefore jurisdictionally defective, because, in each, the officer's factual narrative is conclusory. (See Def.'s Aff. at Point II, ¶¶ 14-37). The supporting depositions are examined in turn, below.
1. VTL § 1128(a)
VTL § 1128(a) provides, in pertinent part, "[w]henever any roadway has been divided into two or more clearly marked lanes for traffic...[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." The supporting deposition submitted in support of the simplified traffic information charging a violation of VTL § 1128(a) states "the defendant did operate the above vehicle at the above place of occurrence, [and] as observed by your deponent, did fail to safely maintain a single lane of travel."
While the supporting deposition is based on the officer's direct observation, the factual portion is bereft of allegations of an evidentiary character; rather, it merely recites, in conclusory fashion, that the defendant "did fail to safely maintain a single lane of travel." In addition, and seemingly in contradiction, the officer also described the violation as "[the defendant] moved from lane unsafely." It is the opinion of this Court that the conclusory nature of the allegations fails to adequately apprise the defendant of the accusations against her, and therefore the accusatory instrument is facially insufficient. See, e.g., People v Bollag, 42 Misc.3d 149(a), 986 N.Y.S.2d 866 [2d Dep't 9th and 10th Jud Dist 2014] [reversing judgment of conviction where "[t]he supporting deposition set forth little more than the conclusory assertion that defendant had violated [the Vehicle and Traffic Law] by his failure to obey an unspecified traffic control device."].
2. VTL § 1129(a)
VTL § 1129(a) provides, in pertinent part, that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speedy of such vehicles and the traffic upon and the condition of the highway." The supporting deposition submitted in support of the simplified traffic information charging a violation of VTL § 1129(a) states, in pertinent part "[t]he defendant did operate the above vehicle at the above place of occurrence, and as observed by your deponent, did follow another vehicle at an unsafe distance, which was less than reasonable and prudent under the existing traffic conditions."
Again, the supporting deposition contains no evidentiary allegations, but merely sets forth the conclusory allegation that the defendent "did follow another vehicle at an unsafe distance." This bare bones allegation, which simply repeats the statutory language, does not provide the defendant with sufficient information regarding the speed of travel of the defendant's vehicle or the other vehicle; nor does it provide any information regarding what distance the officer deemed to be unsafe. Accordingly, this Court concludes that the accusatory instrument is facially insufficient.
3. VTL § 1194(1)(b)
VTL § 1194(1)(b) provides, in pertinent part, "[e]very person operating a motor vehicle which...is operated in violation of any of the provisions of this chapter shall, at the request of a police officer, submit to a breath test to be administered by the police officer." The supporting deposition submitted in support of the simplified traffic information charging a violation of VTL § 1194(1)(b) states "the defendant...did refuse to submit to a preliminary breath test as requested by your deponent."
Even if the supporting deposition were adequate, it is the opinion of this Court that the accusatory instrument is defective because the defendant's refusal to submit to a preliminary breath test is not recognized as an offense within this jurisdiction. See People v Carron, 51Misc.3d 135(A), 36 N.Y.S.3d 408 [App Term 2d Dep't 9th and 10th Jud Dists 2016]. Moreover, the People's opposition papers indicates that they consent to the dismissal of this charge by operation of law. See People's Mem. of Law at p. 14/84.
Therefore, this Court finds that the accusatory instruments are legally insufficient, and thus jurisdictionally defective, with respect to the alleged violations of VTL § 1128(a), VTL § 1129(a), VTL § 1194(1)(b).
B. Motion to Strike the CoC
The defendant next contends that the People's CoC/SoR, filed on December 14, 2021, is invalid due to the fact that the CoC/SoR incorrectly certified as to the legal sufficiency of all accusatory instruments, including the three informations which were deficient for the reasons discussed above. (See Def.'s Aff. at Point II, ¶¶ 39-41).
Pursuant to CPL § 30.30(5-a), "a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charges in the accusatory instrument meet the requirements of section 100.15 and 100.40 of this chapter and those counts not meeting the requirements of section 100.15 and 100.40 of this chapter have been dismissed."
As noted above, this Court finds that the accusatory instruments with respect to the alleged violations of VTL § 1128(a), VTL § 1129(a), VTL § 1194(1)(b) are legally insufficient. However, the defendant is also charged in this case, in separate accusatory instruments, with two misdemeanors - one count of Driving While Intoxicated in violation of VTL § 1192.3, and Reckless Driving in violation of VTL § 1212 - along with four additional traffic infractions. It is the opinion of this Court that where the People certified as to the legal sufficiency of all accusatory instruments, and some accusatory instruments are later deemed facially insufficient, the initial CoC/SoR is nevertheless still valid as to the remaining accusatory instruments.
Therefore, the fact that three accusatory instruments are deemed by this Court to be facially insufficient does not render the CoC/SoR filed on December 14, 2021 invalid with respect to the remaining charges. See, e.g., People v Ward, 73 Misc.3d 1221(A), 155 N.Y.S.3d 287 [City Ct, City of Poughkeepsie 2021] [CoC/SoR containing facially insufficient traffic infractions was not invalid on ground that it included such infractions, where defendant was also charged with other offenses; nevertheless, the People were required to file supplemental CoC/SoR after Court dismissed facially insufficient traffic infractions, and initial CoC/SoR was rendered illusory when People failed to do so]. Accord, People v Ausby, 46 Misc.3d 126(A), 7 N.Y.S.3d 244 [App Term 1st Dep't 2014] [statement of readiness as to converted charge effectively stopped speedy trial clock as to that charge, even where the accusatory instrument contained a subsequently dismissed charge]. Thus, the defendant's motion to strike the December 14, 2021 CoC/SoR is denied.
C. Motion to Dismiss Based on Statutory Speedy Trial Grounds
Finally, the defendant contends that the People have exceeded their statutory speedy trial time pursuant to CPL § 30.30. (See Def.'s Aff. at Point III, ¶¶ 59-62).
Pursuant to CPL § 30.30(1)(b), with respect to the misdemeanor charges, the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal actions, taking into account all excludable time periods. The within criminal action was commenced on November 7, 2021. The The People filed their CoC/SoR on December 14, 2021.
The gravamen of the defendant's speedy trial motion is that the People's CoC/SoR is invalid due to the People's failure to promulgate legally sufficiency accusatory instruments with respect to all charges, and consequent failure to certify accurately as to the legal sufficiency of all accusatory instruments. Thus, the CoC/SoR filed on December 14, 2021 failed to stop the running of the speedy trial clock with respect to the misdemeanor charges; rather the defendant contends that the time elapsed from the date of arraignment until the date of the filing of the instant motion, 136 days, is chargeable to the People.
This Court finds that the defendant has met her initial burden on a CPL § 30.30 motion by alleging that the prosecution failed to declare readiness within the statutorily- prescribed time period. (See People v Goode, 87 N.Y.2d 1045 [1996]). The ultimate burden of proving that certain time periods should be excluded falls upon the People. (See People v Berkowitz, 50 N.Y.2d 333 [1980]).
Nevertheless, for the reasons discussed above, this Court finds that the December 14, 2021 CoC/SoR is valid as to the surviving charges (i.e., two misdemeanors, and four traffic infractions). Accordingly, even if all of the time from arraignment until the CoC/SoR were chargeable to the People, a maximum of 37 days has elapsed on the speedy trial clock. Thus, the defendant's motion to dismiss the misdemeanor charges based on an alleged speedy trial violation is denied.
Finally, the People's contention that the instant motion is untimely is meritless, as the defendant's argument that three accusatory instruments are jurisdictionally defective raises questions of subject matter jurisdiction, which are non-waiveable. See People v Parris, 113 Misc.2d 1066, 1068, 450 NYS 721, 723 [Crim Ct, City of NY 1982].
By reason of the foregoing, the defendant's motion to dismiss three accusatory instruments as legally insufficient is GRANTED. The defendant's motion to strike the CoC/SoR is DENIED. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of her speedy trial rights is DENIED. The People's motion to preclude further motions by the defendant is DENIED, subject to the requirements set forth in CPL § 255.20(3).