Opinion
2007SU42964.
Decided October 21, 2008.
ADA Peter H. Mayer, Central Islip, NY.
Scott Lockwood, Esq., Deer Park, NY.
The Defendant is charged under docket number 2007SU42964"S" with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (V TL § 511[1][a]) and with Failure to Wear a Seat Belt (V TL § 1229[c][3]). Under docket numbers 2007SU54166"S" and 2007SU55639"S", he is charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (V TL § 511[1][a]). The Defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (V TL § 511[2]) and with Operating a Motor Vehicle Without Insurance (V TL § 319[1]) under docket number 2008SU15464"S". Each offense is charged by simplified information as indicated by the complainant police officer on the face of the short form instrument.
The Defendant moves to dismiss each of the accusatory instruments charging a violation of V TL § 511 in the interest of justice (CPL § 170.40) on the ground that the suspension of the Defendant's driver's license by the Department of Motor Vehicles (DMV) was unconstitutional. In addition, he moves to dismiss all the accusatory instruments based on the Court's alleged failure to supply the Defendant with copies of the accusatory instruments pursuant to CPL § 170.10(2). The People oppose the relief demanded by the Defendant.
First, the Defendant argues that the DMV "unconstitutionally suspended Mr. Zeigler's driving privileges based upon a finding of guilt for which he has submitted documentary evidence that he was wholly innocent". Based on the alleged unconstitutional revocation of the Defendant's license, he seeks to dismiss the V TL § 511 charges herein in the furtherance of justice, and applies the CPL § 170.40 factors to the Defendant's cases. "CPL § 170.40 gives the Courts of this State an extraordinary scope of discretion. It provides that, although there may be no basis for dismissal as a matter of law, such dismissal is required by the existence of some compelling factor, consideration, or circumstance clearly demonstrating that conviction or indeed continued prosecution of the Defendant would constitute or result in injustice. The statute makes the interests of justice paramount and it is therefore mandatory that the discretion of the Court be founded upon fully explored and deliberated considerations . . ." ( People v. Pius, 157 Misc 2d 805). Motions to dismiss in the interest of justice are addressed to the sound discretion of the Court, and must be evaluated in light of the factors enumerated in CPL § 170.40(1)(a)-(j) ( see, People v. Shaughnessy, 168 Misc 2d 53, 54).
Although the Defendant contends that the facts which give rise to the subject V TL § 511 charges arose from a default conviction entered by the Traffic Violations Bureau (TVB) for a violation of V TL § 319(1) on March 9, 2007, and which conviction the DMV allegedly vacated and lifted the revocation, he provides neither proof that the underlying conviction was vacated nor the revocation lifted. In fact, defense counsel states that "[u]nfortunately, rather than issue a recision letter, the Department [DMV] scheduled this matter for a hearing". The Defendant submits as Exhibit "A" only a DMV Application to Reopen a Default Conviction, supporting statements and a copy of a letter from his insurance company, dated September 10, 2007, indicating that he had liability coverage on March 9, 2007. Even though the Defendant argues that the revocation of his driver's license was in violation of the constitutional protections afforded to him under the state and federal constitutions, the Court notes that he has submitted no documentary evidence in admissible form for consideration that the DMV has vacated the subject conviction, and lifted the revocation.
In the matter sub judice, the Court has reviewed the motion papers, as well as considered the factors listed in CPL § 170.40(1)(a)-(j) and the Defendant's arguments. Upon such examination, the Court finds that the defendant has failed to demonstrate the existence of any compelling factor, consideration or circumstance demonstrating clearly that his continued prosecution or conviction upon the accusatory instruments herein would constitute an injustice. Where a bona fide defense or other evidence to defeat the People's case exists, this is a matter for resolution at trial rather than by way of a pre-trial motion to dismiss ( see, People v. Prunty, 101 Misc 2d 163). Having examined the matter in regard to each of the statutory factors enumerated, as well as in regard to the whole, the Court concludes that it would not be in the interest of justice to dismiss the accusatory instruments charging the Defendant with violations of V TL § 511 in the above referred to dockets at this time. Accordingly, that part of the Defendant's motion which seeks to dismiss said instruments in the interest of justice is denied.
Second, the Defendant moves to dismiss all the charges in the above referred to dockets based upon an alleged failure of the arraigning Court to furnish the Defendant with copies of the accusatory instruments pursuant to CPL § 170.10(2). CPL § 170.10 addresses arraignment upon information, simplified traffic information, prosecutor's information or misdemeanor complaint; the Defendant's presence, the Defendant's rights, the Court instructions and bail matters. It states in pertinent part that: "Upon arraignment at which the Defendant is personally present, the Court must immediately inform him or cause him to be informed in its presence, of the . . . charges against him and must furnish him with a copy of the accusatory instrument" (CPL § 170.10). The Defendant argues that the failure of the Court to give him a copy of each accusatory instrument deprives the Court of jurisdiction over him, and requires dismissal. The Defendant contends that "[s]ince the Defendant has not been properly arraigned, any proceeding taken under this [sic] docket [sic] is a nullity and the prosecution cannot proceed in the absence of a valid arraignment. Defendant hereby requests dismissal of those charges". The People oppose the Defendant's motion to dismiss on this ground.
Upon reviewing the motion papers, the Court initially finds that the Defendant has not indicated under which section of CPL § 170.30 he moves to dismiss and, further, the ground presented by the Defendant, failure to comply with CPL § 170.10(2)(ie., to furnish the Defendant with a copy of the accusatory instrument), is not listed in CPL § 170.30. CPL § 170.30 provides the seven grounds upon which a local criminal court, after arraignment and on the Defendant's motion, may dismiss an accusatory instrument. The Court of Appeals has held that CPL § 170.30 grounds are exclusive grounds for dismissal of a non-felony accusatory instrument ( see, People v. Douglass, 60 NY2d 194). The Court of Appeals stated:
Hence, it follows that inasmuch as the courts did not possess inherent power to order dismissals of the complaints, nor acquired such authority from the Legislature, the accusatory instruments at issue in these appeals should not have been dismissed.
This is all the more obvious when one recognizes that the CPL is an integrated and comprehensive system of laws which was carefully designed to protect individual freedoms, to safeguard the public and to promote respect for law and the legal process'. (Governor's Memorandum, McKinney's Session Laws of NY, 1970, p. 3140). Thus, it is not for the trial courts to depart from the clear wording of CPL 170.30 and adopt, ipse dixit, a rule which empowers them to dismiss criminal proceedings on grounds . . . which the Legislature never authorized.
No where in the statute is failure to comply with CPL § 170.10(2)[failure to furnish a copy of the accusatory instruments] mentioned as a ground for dismissal. Because no such ground asserted by the Defendant in the matters sub judice is included in the statute (CPL § 170.30), the Court lacks authorization to dismiss the accusatory instruments. "Courts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes". ( People v. Laing, 79 NY2d 166). Clearly, the Court of Appeals "has rejected the notion that the trial courts have an inherent right to fashion a dismissal in the absence of statutory authority, and the Legislature has quite clearly limited the grounds upon which a pretrial order of dismissal can be procured" ( People v. Guzman, 168 AD2d 154 [App. Div. 2nd Dept., 1991]; see also, People v. Salinas, 231 AD2d 536 [App. Div. 2nd Dept., 1996] "reasons given by the Court in support of its determination are not among enumerated grounds . . ."; People v. McConnell , 11 Misc 3d 57 [App. Term, 9th 10th Jud. Dists., 2006] "the grounds for dismissal of an information are limited to those set forth in CPL 170.30 . . ."; ( People v. Paredes, 12 Misc 3d 135 (A) [App. Term, 9th 10th Jud. Dists., 2004] "trial court has no statutory or inherent authority to dismiss a criminal proceeding for failure to prosecute . . ."). Since failure to give the Defendant a copy of the accusatory instrument at arraignment is not one of the enumerated grounds listed in CPL § 170.30 for dismissal, the Court does not have the power to order such dismissals and will not broaden the scope of the statute to authorize same.
However, the Court finds it important to note that in reviewing the circumstances of the Defendant's arraignments in the above referenced cases that none of the Defendant's fundamental rights, including the right to due process, have been violated, that the Court has acquired personal and subject matter jurisdiction in these actions, and that the arraignments are valid. As stated earlier, the Defendant is charged with each offense herein by simplified information as indicated by the complainant police officer on the face of the short form instrument. The Defendant, at the time of each subject offense, was served by the complainant police officer with a summons charging a specific V TL offense, and directing the Defendant to appear on a specific date at the First District Court for arraignment. Each complainant police officer filed with the Court a designated simplified information which commenced the action against the Defendant, and gave the Court subject matter jurisdiction ( see, CPL §§ 1.20; 150.50[1]). In docket numbers 2007SU42964"S", 2007SU55639"S", 2008SU15464"S", the Defendant personally appeared, was arraigned and pleaded not guilty. (In docket number 2007SU54166"S", the Defendant pleaded not guilty by mail). Hence, the Court acquired personal jurisdiction over the defendant in each of these actions.
It also is significant to note that the summonses served herein on the Defendant by the complainant police officers are carbon copies of the simplified informations, and are virtually identical to the accusatory instruments filed with the Court, which instruments designate the offenses charged. The only differences between the documents are the caption ("summons"; "simplified information"), the simplified information has a place for the complainant police officer's supervisor to sign, and very importantly, the Defendant's summons, on the reverse side, provides the Defendant with information about his rights. More specifically, the reverse side of the summons provides inter alia the following information: the Defendant's right to receive a supporting deposition and how to request it; upon appearing for arraignment, the Defendant's right to aid of counsel at arraignment and at every stage thereafter; the right to an adjournment for the purpose of obtaining counsel; and the right to have counsel assigned by the Court if the Defendant is financially unable to retain an attorney.
Even if the Court did not provide the Defendant with copies of the simplified information at the arraignments, it is the opinion of the Court that when served with the summonses he did receive identical, carbon copies, of the accusatory instruments designating the offenses charged, and explaining his rights under the law. Under these circumstances, the Court does not agree with the Defendant's argument that the alleged failure of the Court to provide a copy of each accusatory instrument at arraignment, where the Defendant was personally present, "deprive[s] the Court of jurisdiction to try the Defendant in this matter and requires dismissal". The Court does concur with one of the statements in a case cited by the Defendant. The court in People v. Moore ( 58 Misc 2d 122) observed that "there must be a dividing line between what are minor aberrations in criminal practices as contrasted with the neglect to adhere to fundamental rights". However, the Court observes that the case People v. Felberbaum ( 22 Misc 2d 695), cited by the Defendant for his contention that the "law is well settled that the statutory requirements for an arraignment are mandatory and the failure to strictly adhere to these requirements renders void any further proceedings taken therein", was reversed by the Court of Appeals in People v. Felberbaum, ( 9 NY2d 213). The Court of Appeals construing the Traffic Regulations of the City of New York held that the arraignment proceeding in the Magistrates' Court in New York City was proper and did not violate the Equal Protection Clause, although the Magistrate did not advise the Defendant of his right to counsel.
The Court finds, therefore, that the Defendant was properly arraigned on all the charges herein and that the alleged failure of the Court to give the Defendant a copy of each simplified information at arraignment does not deprive the Court of jurisdiction to try the Defendant, does not render the arraignments invalid, or nullify any proceeding taken under the above referred to dockets. Further, the Defendant has provided no proof or evidence that at the subject arraignments the Court did not "immediately inform [the Defendant] or cause him to be informed in its presence, of the . . . charges against him" ( see, CPL § 170.10). It is the Court's opinion that the Defendant was properly advised of the charges (especially since the summonses are carbon copies of the simplified informations), and the appropriate remedy for any alleged failure at arraignment to be provided with a copy of the simplified information is, upon the Defendant's request, for the Court to furnish same. Under the circumstances of these cases, where the accusatory instruments are simplified informations, a failure to strictly adhere to CPL § 170.10(2) (ie., to furnish the Defendant with copies of the accusatory instruments) does not violate or neglect the Defendant's fundamental rights and, hence, the matters may proceed.
Lastly, the Court finds no moment to the Defendant's argument that since he was allegedly not given copies of the simplified informations at arraignment he was deprived of a right or opportunity to request supporting depositions ( see, CPL § 100.25). As stated above, the summonses served on the Defendant, on their reverse sides, clearly spell out the Defendant's right to receive supporting depositions further explaining the charges, and the time period in which to make such requests.
Accordingly, the Defendant's motion to dismiss is denied.