Appeal from a judgment of the Justice Court of the Town of Blooming Grove, Orange County (Christopher J. Turpin, J.), rendered July 15, 2010. The judgment, after a nonjury trial, convicted defendant of driving while ability impaired.

ORDERED that the judgment of conviction is reversed, on the law, the prosecutor's information is dismissed, and the fine, if paid, is remitted.

By separate simplified traffic informations, defendant was charged with, among other things, driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]). Prior to trial, the People filed a superseding prosecutor's information charging defendant with driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) and the simplified traffic informations were dismissed. After a nonjury trial, the Justice Court found defendant guilty of driving while ability impaired.

As a preliminary matter, we note that defendant's argument that the prosecutor's information was an invalid accusatory instrument is reviewable because "[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (Matter of Peterson v Becker, 72 AD3d 1250, 1251 [2010], quoting People v Harper, 37 NY2d 96, 99 [1975]).

A prosecutor's information may not be used to supersede a simplified traffic information (see CPL 100.50; People v Cantelmo, NYLJ, Oct. 27 1995 [App Term, 9th & 10th Jud Dists]; People v Baron, 107 Misc 2d 59, 61 [App Term, 9th & 10th Jud Dists 1980]). In this case, the People impermissibly sought to supersede the original simplified traffic informations by filing a prosecutor's information charging defendant with driving while ability impaired (see CPL 100.50 [2]). Accordingly, the prosecutor's information must be dismissed. [*2]

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: July 28, 2011