The defendant, Darren B. Bruce, is charged with violating VTL §511.1 ("aggravated unlicensed operation of a motor vehicle in the third degree"), VTL §512 ("operation while registration is suspended"), VTL §509.1 ("unlicensed operation"), VTL §319.1 ("no insurance"), and VTL §1211 ("unsafe backing"). Violations of VTL §§511.1 and 512 are misdemeanors. The other three charges are traffic infractions. The prosecution was commenced via five simplified traffic informations.

Defendant moves to dismiss the accusatory instruments as defective, pursuant to CPL §170.30(1)(a), §170.35(1)(a)(c) and §170.35(2), in that they are not sufficient on their face, pursuant to CPL §100.15(3) and §100.40. The People oppose this motion.

The instant motion has had an unfortunately tortured path.

The motion was originally made before a judge of this court (Fiechter, J.), who signed an order granting the defendant's motion, in part, and dismissing several of the charges. As a result of apparent ministerial confusion, the same judge then signed a second order, which was virtually identical to the first order, except for the last sentence. The last sentence of the second order, however, rather than granting any part of the motion, outright denied the motion in part, and set the remaining matters down for a hearing to resolve certain specified factual issues.

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Neither decision, apparently, was ever mailed out to counsel.

The situation came to light only when this case was called for conference in the Part to which it is assigned, before the instant Court, and inquiry was made by counsel as to the status of the motion which had been submitted. The prior judge had left the bench and was no longer available to resolve the discrepancy.

For purposes of this motion, it is determined that neither of the two prior mutually contradictory decisions ever came into effect, neither having been sent out to counsel. Alternatively, the two decisions are vacated and annulled. This Court will therefore consider the motion ab initio, and on the merits.

CPL §100.25(2) states, in pertinent part, that [*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 him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer

or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing

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reasonable cause to believe that the defendant committed the offense or offenses charged.

The instant defendant appeared and was arraigned on the accusatory instruments. At that time an oral demand was made for supporting depositions on all of the counts.

According to the documents in the court's file, the complainant police officer was directed by the court at arraignment (Fairgrieve, J.), to serve supporting depositions for all of the counts.

Since a timely request for supporting depositions was made, the failure to supply the depositions would render the simplified informations insufficient on their face under CPL §100.40(2) and subject to dismissal pursuant to CPL §170.35(1)(a) and §170.30(1)(a). (See, People v. Nuccio, 78 N.Y.2d 102, 571 N.Y.S.2d 693 [1991]).

The file contains two separate, potentially pertinent, documents/groups of documents.

The file contains a document entitled "Supporting Deposition/Bill of Particulars - Aggravated Unlicensed Operator." This document alleges on personal knowledge both the elements of the VTL §511.1 offense, and the commission of the VTL §1211 violation as PEOPLE V. BRUCE

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the predicate for the stop. This document was apparently already affixed to the accusatory instruments at the time of the arraignment.

The file also contains a series of documents each dated three weeks after the arraignment and labeled "Supporting Deposition to Support Simplified Traffic Information" with respect to each of the charges against defendant, including VTL §§511.1, 1211, 512, 509, and 319.1.

These supporting depositions, apparently provided in response to the oral demand and Court direction, are accompanied by a single affidavit of service.

Although the affidavit of service is undated, the supporting depositions were apparently mailed concomitantly with their making, as it would appear that the intent was to provide the [*3]supporting depositions within thirty days of the demand, as required by CPL §100.25(2), and in advance of the first conference after arraignment, which was scheduled to be, and was, held five weeks after the arraignment.

However, the affidavit of service of the supporting depositions shows service only upon the individual defendant, at the same address shown on the simplified traffic informations, and not upon counsel. The thirty day period elapsed before the initial conference.

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In People v. Rossi, 154 Misc.2d 616, 618 (Just. Ct., Muttontown 1992)(Kaminsky, J.), "the supporting deposition was delivered to the defendant within the 30-day period required by Section 100.25(2), but not to his attorney until after the 30-day period had elapsed. The question presented [was] whether that service upon the defendant was sufficient to satisfy the statute, or whether, since defendant was represented by an attorney, service had to be made upon the attorney." The court concluded that "where counsel has appeared for the defendant, the supporting deposition must be served upon that attorney within the time prescribed by the statute, and that timely service upon the defendant himself is insufficient to satisfy the statute." 154 Misc.2d at 617.

However, the Rossi court added a potentially significant caveat to this ruling. The ruling is limited to those situations in which "an attorney has entered a formal appearance with the Clerk before or at the time of the request for supporting deposition. Absent such a formal

appearance, the supporting deposition should be served upon the defendant himself." 154 Misc.2d at 623.

In People v. Brady, 196 Misc.2d 993, 998 (Dist. Ct., Nassau Co. 2003)(Kleuwer, J.), the court in fact rejected a request for a CPL 100.25(2) dismissal on this ground, observing that "no written notice of appearance is contained in the file . . . . More importantly, since neither defendant nor her counsel bothered to endorse the demand for supporting depositions with

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counsel's name, address and telephone number . . . defendant cannot now be heard to complain that the arresting state trooper served the supporting depositions at the only address available to him [citation omitted]. Service in this case of the supporting depositions on defendant at the address designated in the simplified traffic informations is thus valid . . ."

Counsel for the defendant in the instant case was assigned from this county's 18-B panel. The appointment was made pursuant to an undated form, but since signed by the judge who presided at the arraignment, was presumably made on that date. [*4]

However, the defendant was arraigned in "Arraignment B," the part of this court for the return of all non-custodial appearance tickets. If counsel for the defendant was the "18-B of the day," assigned to stand in for arraignment purposes for all otherwise non-represented defendants

in that part, the likelihood is that the appointment would have been made on the record in open court, and the People put on at least oral notice of the same. But if counsel for the defendant was not the "18-B of the day," but was appointed because the "18-B of the day" had a conflict of some kind (such as representation of a co-defendant), then counsel would have been appointed off the 18-B list, and it is less likely that the People would have received even oral notice.

Particularly in view of the fact that there is no written demand in the file, but only a court directive containing no information about the identity of counsel, and presumably issued

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pursuant to oral demand, it is unclear whether the circumstances were such as to have placed upon the People the burden, under CPL §100.25(2), of ensuring that service of the supporting depositions, made between arraignment and the initial conference, was made upon not just the defendant himself, but his counsel.

Under the circumstances, the defendant's motion is denied as to the VTL §511.1 and VTL §1211 charges as to which the supporting deposition already annexed, at the time of arraignment, to the accusatory instruments, was sufficient. However, the defendant's motion as to the remaining charges, dependent upon the supporting depositions whose service is in issue, is set down for a hearing in Part 6 of this Court to determine issues of fact and law necessary for resolution of the motion.

So Ordered:

DISTRICT COURT JUDGE

Dated: June 14, 2004

CC:Hon. Dennis Dillon, District Attorney

Greg LaMarca, Esq.

KLG:ms