People v St. Clair (2008 NY Slip Op 51846(U))

People v St. Clair

2008 NY Slip Op 51846(U) [20 Misc 3d 1144(A)]

Decided on August 18, 2008

Just Ct Of Vil. Of Tarrytown, Westchester County

Warhit, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through September 22, 2008; it will not be published in the printed Official Reports.

Defendant is charged with Driving While Intoxicated ("DWI") in violation of New York State Vehicle and Traffic Law ("VTL") § 1192(3), refusing to submit to a breath test in violation of VTL § 1194(b), failing to signal in violation of VTL § 1163(b), crossing a double yellow line in violation of VTL § 1126(a) and operating a vehicle with a non-transparent window in violation of VTL § 375(12)(a)(b). The People filed simplified traffic informations and defendant was arraigned with respect to the charges on January 2, 2008 in Tarrytown Village Court.

Defendant was not represented by counsel at arraignment but indicated he intended to retain counsel. The Court entered a plea of not guilty on defendant's behalf. The People declared their readiness for trial and the Court adjourned the matter to January 16, 2008 for the appearance of defendant's counsel. The Court also ordered the temporary suspension of defendant's New York State driver's license.

On January 16, 2008 defendant appeared with retained counsel. Counsel requested a supporting deposition or depositions in support of all five simplified traffic informations. On this same date, in response to counsel's demand, the People filed with the Court and served upon counsel what the People represented to be a supporting deposition. Counsel acknowledged receipt of said document and stated that he was not waiving any claims to the sufficiency of the [*2]accusatory instruments or the supporting deposition. The People did not respond to counsel's statement other than to reaffirm their declaration of readiness. The matter was adjourned to April 9, 2008 for a non-jury trial. Neither the People nor counsel for defendant opposed such trial date.

On April 9, 2008, prior to commencement of the trial, defense counsel filed a motion seeking dismissal of the pending charges on grounds that the accusatory instruments, specifically the simplified traffic informations, were insufficient. Counsel contended that the People failed to meet the requirements of Criminal Procedure Law ("CPL") § 100.25(2) in that, despite his timely demand, the People had not filed and served a properly executed supporting deposition in support of the DWI charge and had not filed any supporting document in connection with the traffic violations. Counsel contended that, although the document the People filed and served on January 16, 2008 contained factual statements in support of the DWI charge, it did not meet the statutory requirements of a supporting deposition since it was not signed by the complaining police officer or any other public servant. The People requested an opportunity to review the motion and submit responsive papers. The Court granted the People's application and set a motion schedule which afforded the People two weeks in which to submit opposition papers. The Court adjourned the matter to June 4, 2008 for a decision on the motion and control purposes.

The People did not submit opposition papers. Rather, on June 4, 2008 the People informed the Court that, although the People did not consent to defendant's motion, the People did not oppose it. Thereupon, as the supporting deposition filed with the Court and served on counsel on January 16, 2008 was not signed and clearly did not meet the requirements of CPL § 100.25(2), the Court granted defendant's application and dismissed all five simplified traffic informations.

On this same date, during the same Court appearance, the People filed a properly executed misdemeanor information accusing the defendant of the original five charges. Counsel for defendant immediately requested an opportunity to submit a motion to dismiss this accusatory instrument on grounds that it was time barred pursuant to CPL § 30.30. The Court adjourned the matter for that purpose and said motion was filed June 30, 2008. The People filed opposition papers on July 15, 2008 and the defendant filed reply papers on July 22, 2008.

The criminal action against defendant arising out of his having allegedly driven while intoxicated on December 29, 2008 was commenced on January 2, 2008 by the filing of simplified traffic informations. CPL § 100.15(3) authorizes commencement of an action in this manner. Nevertheless, as a matter of right, defendant is entitled to a supporting deposition providing reasonable cause to believe defendant committed the offense or offenses charged inasmuch as the request is timely made. CPL § 100.25 (2). Counsel for defendant sought a [*3]supporting deposition on January 16, 2008, well within the statutory prescribed time period. As a result, defendant was unequivocally entitled to such supporting deposition.

The People do not contest defendant's entitlement to such supporting deposition or contend that the unsigned supporting deposition filed and served on January 16, 2008 was sufficient. In fact, the supporting deposition was not properly subscribed and verified and did not, therefore, provide non-hearsay factual support for every element of each offense charged. This failure rendered the simplified traffic informations facially insufficient. CPL § 100.15(3); CPL § 100.25(2); CPL § 100.40(2); See, People v. Perry, 87 NY2d 353, 639 NYS2d 307 (1996); People v. DeFeo, 77 Misc 2d 523, 355 NYS2d 905 (App. Term 2d Dept. 1974).

On June 4, 2008, immediately following the Court's dismissal of the simplified traffic informations, the People filed a misdemeanor information that charged the defendant with the same crimes and violations as originally alleged in the simplified traffic informations. The defendant was arraigned on the misdemeanor information and the People announced their readiness for trial. Counsel for defendant immediately indiciated his intention to file a motion to dismiss the misdemeanor information on the grounds that the charges contained therein were time barred. Counsel filed that motion on June 30, 2008, the People filed their answering papers on July 15, 2008 and counsel for defendant submitted reply papers on July 22, 2008.

The misdemeanor information filed on June 4, 2008 is facially sufficient as it provides non-hearsay support with respect to each of the charges filed. CPL § 100.15(3); CPL 100.30(d). As such, the only issue presently before the Court is whether the People have met their speedy trial obligations.

One of the previously dismissed simplified traffic informations, and the misdemeanor information which was filed in its stead, charge the defendant with DWI, which is defined by VTL § 1192(3) as an unclassified misdemeanor. The People are required to be ready for trial within ninety days. CPL § 30.30(1)(b). There is no speedy trial issue as to the traffic violations. The statutory right to a speedy trial does not apply to traffic infractions. See, People v. Thorpe, 160 Misc 2d 558, 613 N.Y.S. 795 (App. Term 1994); People v. Gonzalez, 168 Misc 2d 136, 645 N.Y.S. 978 (App. Term 1996). While defendant has a constitutional right to a speedy trial on the traffic infractions, defendant does not claim a constitutional speedy trial violation.

In accordance with CPL § 30.30(1)(b) the People were required to be ready for trial within ninety days of the commencement of the pending criminal action. The ninety day period is appropriately calculated from January 2, 2008, the original date the criminal action was commenced. CPL § 1.20(17) directs that a "criminal action is commenced by the filing of an accusatory instrument in a criminal court and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed". The Court of Appeals has held that when during a criminal action subsequent accusatory instruments are filed which directly derive from the initial instrument, the action is deemed to commence on the date the first accusatory instrument is filed. See, People v. Lomax, 50 NY2d 351, 428 NYS2d 937 (1980). This rule applies even when the original accusatory instrument is replaced or superceded during the course of the action. See, People v. Sinistaj, 67 NY2d 236, 501 NYS2d 793 (1986). [*4]The rule espoused by the Court of Appeals in Sinistaj is equally applicable to local court accusatory instruments. See, People v. Cooper, 98 NY2d 541, 750 N.Y.S. 258 (2002). Accordingly, January 2, 2008 is the date from which the speedy trial time must be calculated.

Although the People stated they were ready on January 2, 2008 and again on January 16, 2008, the People's declarations were not sufficient as readiness requires a declaration as well as actual readiness. See, People v. Kendzia, 64 NY2d 331, 486 N.Y.S. 888 (1985); People v. England, 84 NY2d 1, 613 N.Y.S. 854 (1994). As the People apparently inadvertently violated CPL § 100.25(2) by filing and serving an unsigned supporting deposition, the accusatory instrument was defective. A valid and sufficient accusatory instrument is a jurisdictional prerequisite to a criminal prosecution. People v. Case, 42 NY2d 98, 396 NYS2d 841 (1977); People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987). As such, the People were not actually ready until they filed the misdemeanor information and declared their readiness on June 4, 2008.

Speedy trial is not absolute. In computing the time within which the People must be ready for trial, CPL § 30.30 directs that certain periods must be excluded. This Court must, therefore, determine how much of the time between January 2, 2008 and June 4, 2008 is chargeable to the People.

The time during which a defendant is without counsel is not chargeable to the People as speedy trial time. CPL 30.30(4)(f); People v. Aubin, 245 AD2d 805, 666 N.Y.S. 778 (3d Dept. 1997); People v. Reynoso, 295 AD2d 156, 744 NYS2d 7 (1st Dept. 2002). Accordingly, the period from January 2, 2008 to January 16, 2008 is not chargeable to the People.

Additionally, any delay caused by pre-trial motions is also excluded from the computation of speedy trial time. The time excluded is the period during which such matters are under consideration by the Court. CPL 30.30(4)(a); People v. Worley, 66 NY2d 523, 498 NYS2d 116 (1985). Accordingly, the period commencing April 9, 2008 when defendant filed his motion to dismiss the simplified traffic informations through June 4, 2008 when the Court dismissed those accusatory instruments is excluded as attributable to pre-trial motion practice and not chargeable to the People.

The entire period between January 16, 2008, when counsel first entered the case, until April 9, 2008 is chargeable to the People. This period constitutes a total of eighty three days. As such, the People announced readiness and were actually ready for trial within the statutorily mandated ninety days.

Accordingly, defendant's motion to dismiss the misdemeanor information upon which defendant was arraigned on June 4, 2008 pursuant to CPL § 30.30 is denied. The parties are directed to appear on September 3, 2008 to select a trial date. [*5]

Dated: Tarrytown, New York