The defendant was charged with Speed not reasonable and

prudent in violation of VTL 1180(a), Moved from Lane Unsafely, VTL 1128(a), Common Law

Driving while Intoxicated, VTL 1192(3) and Aggravated Driving While Intoxicated, VTL

1192(2-a) on December 16, 2007 at approximately 2:30 A.M on Lake Road in the Town of

Webster, County of Monroe. The defendant was issued Simplified Traffic Informations, which

were returnable on January 2, 2008. The defendant appeared for arraignment with counsel on

that date. The matter was adjourned for argument of motions on February 6, 2008. The defense

submitted Omnibus Motions, which among other things requested that the Simplified Traffic

Informations charging the defendant with common law and aggravated driving while intoxicated

be dismissed on the ground that same were not sufficient to the charge the crimes therein.

Facts of the Case.

The defendant was provided with a form, i.e. "fill-in-the blanks" supporting deposition,

entitled "Supporting Deposition N.Y.S. V & T Law Section 1192 Subdivision 3", which was [*2]

signed by the arresting officer, Dennis Kohlmeier. The supporting deposition states in pertinent

part "Your deponent did identify the operator of the vehicle as being the defendant subsequent to:

An investigation of a Motor Vehicle Accident." As a result, the defendant contends that the

supporting deposition does not comply with C.P.L. 100.25(2). The applicable portion of that

provision states as follows:

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

"Off. Welch administered a breath test, which the defendant failed. Your opponent did observe the administration of the breath test by Off. Welch, the defendant's offering of a breath sample, and the breath test results indicated .21 % B.A.C."

Boiled down to its essence, the defense contends that the face of the supporting deposition, that is the portion above the signature of the arresting officer, which attests to the contents of the wording above the signature, insufficiently sets out the basis for the arrest. In other words the supporting deposition fails to state either that the officer saw the defendant driving a motor vehicle or the specific reason for the officer's belief that the defendant had been

driving a motor vehicle, while in an intoxicated condition. The defense argues that stating that

the arrest is based on "An investigation of a Motor Vehicle Accident" does not comply with the

requirements of C.P.L. 100.25(2) by not specifically stating what his investigation indicated. [*3]

Assuming arguendo that the attached "Alcohol Influence report" and the "ADDENDUM A

Continuation of a Alcohol Influence Report" fills in the missing information, the defense

contends that said documents do not satisfy C.P.L. 100.25(2), since they are not signed in a

manner that would constitute an oath or would make false statements punishable as a class A

misdemeanor pursuant to Penal Law Section 210.45. In addition, neither the Alcohol Influence

Report nor the Addendum was incorporated by reference in the Supporting Deposition.^[FN2]

Issue Presented.

Is the Supporting Deposition herein sufficient on its face pursuant to C.P.L. 100.20

and C.P.L. 100.25(2), despite the fact that it did not state specifically how the arresting officer

made the determination that there was reasonable cause to arrest the defendant for driving while

intoxicated?

Can the court consider the contents of an Alcohol Influence Report and the Addendum

thereto in determining the sufficiency of a supporting deposition?

Legal Analysis.

A. Source of Information. A form supporting deposition, wherein the arresting officer

could put a check mark in the square next to the language appropriate to the case, was provided

by the People to the defendant. This type of supporting deposition has long been in use in this [*4]

state. In fact, such a supporting deposition was approved by the Court of Appeals. See People v.

Hohmeyer, (1987) 70 NY2d 41, 517 N.Y.S.2d 448. A supporting deposition is required to be

provided to the defense, in order to explain not only what the defendant is charged with, but to

explain how the People came upon that information, when the officer did not observe the alleged

offense being committed. Criminal Procedure Law section 100.25(2) requires that the

allegations set out in the supporting deposition be acquired by "personal knowledge" or "upon

information and belief", and that said allegations establish "reasonable cause" to believe that the

defendant committed the offense in question. C.P.L. 70.10(2) states that

" Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it."

In the instant case, the supporting deposition indicated that the arresting officer

identified the defendant as the operator of the vehicle subsequent to "An investigation of a Motor

Vehicle Accident". Such a statement does not assist the defendant in knowing specifically who

or what led the officer to make the conclusion that the defendant, who was described in the [*5]

supporting deposition as exhibiting many of the common indicia of intoxication, was driving a

motor vehicle in an intoxicated condition.

"In order to be considered adequate, a supporting deposition must set forth facts in a plain and concise manner which provide a reasonable cause to believe that the defendant committed every necessary element of the offense charged. Furthermore, because a supporting deposition is so vital to the defendant in traffic infraction cases, the failure to provide an adequate one cannot be looked upon as a mere technical defect." People v. Hust (1973) 74 Misc2d 887, 890, 346 N.Y.S.2d 303, 307.

B. Attachments to the Supporting Deposition.On the reverse side of the form

supporting deposition herein is the "Alcohol Influence Report" and "Sobriety Checks". In

addition, attached thereto as "Page 3 of 3" is the "ADDENDUM A continuation of a Alcohol

Influence Report". None of these forms are signed in accordance with C.P.L. 100.30 (1)(d).

That provision states that

"Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument."

Furthermore, none of the aforementioned forms were incorporated by reference on the [*6]

face of the supporting deposition above the required signature of the deponent. Criminal Procedure Law section 140.45 permits dismissal of a local criminal court accusatory instrument

"... if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw or file an accusatory instrument which is sufficient on its face ...." The key

words are "facts or evidence". Same could not be gleaned from unsworn or inadequately executed supporting documents. Thus neither the Alcohol Influence Report nor its Addendum can be considered in determining the sufficiency of the supporting deposition. See

People v. Powlowski, (1997) 172 Misc2d 240,246. 658 N.Y.S.2d 558, 562, 1997 NY Slip Op.

97208, wherein the court refused to consider a DMV teletype setting out the defendant's prior driving while intoxicated conviction, for purposes of establishing the sufficiency of a simplified

information charging the defendant with driving while ability impaired as a misdemeanor.

Conclusion.

The supporting deposition in this matter is not sufficient on its face in accordance with

C.P.L. 100.40(2). Criminal Procedure Law 170.30(1)(a) provides for a dismissal of a local

court accusatory instrument when same is defective due to insufficiency. However, Criminal

Procedure Law 170.35(1)(a) requires that such an accusatory instrument "... may not be

dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind

that may be cured by amendment and where the people move to so amend."Amendments that

are permitted are "... limited to matters of time, place, names of persons and the like'". People

v Parris (1982) 113, Misc2d 1066, 1069, 450 NY2d 721, 724. (See also, Carmody-Wait 2d

172:2435 and C.P.L. 200.70.) Nevertheless, "... if the pleading omits elements necessary to state

the crime, the defect is jurisdictional. An objection to the pleading based on this defect will be

preserved from waiver by plea of guilty even though the defect is not noticed until the court of

last resort." People v. Parris (1982) supra 1068, 723. In this case the supporting deposition [*7]

failed to state that the arresting officer observed the defendant operate a motor vehicle or failed to

allege operation by the defendant on information and belief setting forth the specific source of

that conclusion.

Nor can the Alcohol Influence Report or the Addendum to the Alcohol Influence Report

be used to establish the sufficiency of said supporting deposition. Said documents were not

executed in accordance with C.P.L. 100.30. Finally, those documents were not incorporated by

reference into the Supporting Deposition.

Therefore the simplified traffic informations charging the defendants with Common Law

Driving While Intoxicated in violation of V.T.L. 1192(3) and Aggravated Driving While

Intoxicated in violation of V.T.L. 1192(2-a) are hereby dismissed without prejudice.^[FN3] The case is

restored to the disposition calender on March 19, 2008 at 1:00 P.M. This constitutes the [*8]

decision and order of this court.

Dated: Webster, New York

February 21, 2008

________________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice