Appeal from an order of the Justice Court of the Town of Southampton, Suffolk County (Deborah Kooperstein, J.), dated August 4, 2011. The order granted defendant's oral motion to dismiss a simplified traffic information charging him with driving across official markings and an amended misdemeanor information charging him with driving while intoxicated.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the simplified traffic information charging him with driving across official markings and the amended misdemeanor information charging him with driving while intoxicated is denied, the accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings.

After the commencement of trial, defendant orally moved to dismiss the simplified traffic information charging him with driving across official markings (Vehicle
and Traffic Law § 1128 [d]), and the amended misdemeanor information charging him with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). The People objected to defendant's motion on procedural grounds. The Justice Court granted defendant's motion.

Since a defendant charged with a traffic infraction can be prosecuted by a simplified [*2]traffic information alone, and, thus, without any facts providing reasonable cause, the absence of a factual allegation in a supporting deposition is not a jurisdictional defect and can be waived (see People v Key, 45 NY2d 111, 116-117 [1978]). Here, although defendant had requested and received a supporting deposition almost a year before the commencement of his trial, he first moved to dismiss the simplified traffic information, based on the insufficiency of the supporting deposition, after the commencement of his trial. While it is true that the supporting deposition did not state how defendant had violated Vehicle and Traffic Law § 1128 (d), and as such did not amplify the charge, the insufficiency of the supporting deposition was waived by defendant's failure to assert this defect until after trial had begun (CPL 170.30 [2]; 255.20 [1]) and "defendant [had] made no application for an extension of time" (Key, 45
NY2d at 116). In addition, the motion was neither made in writing nor on reasonable notice to the People (CPL 170.45, 210.45 [1]). Consequently, this branch of defendant's motion should have been denied.

The amended misdemeanor information sufficiently pleaded each element of driving while intoxicated and, therefore, it was not jurisdictionally defective (see generally People v Kalin, 12 NY3d 225, 232 [2009]; People v Konieczny, 2 NY3d 569, 575 [2004]). The branch of defendant's motion seeking the dismissal of the amended misdemeanor information was based on an alleged nonjurisdictional defect in the amended misdemeanor information, a ground that had to be preserved by a timely, written pretrial motion (CPL 170.30 [2]; 170.45, 210.45 [1]; 255.20 [1]). However, defendant only orally moved to dismiss this instrument after the commencement of trial and, therefore, defendant's objection was waived (see generally People v Casey, 95 NY2d 354, 362 [2000]; People v Fattizzi, 98 Misc 2d 288 [App Term, 9th & 10th Jud Dists 1978]). Consequently, this branch of defendant's motion should likewise have been denied.

Accordingly, the order is reversed, defendant's motion to dismiss the simplified traffic information charging him with driving across official markings and the amended misdemeanor information charging him with driving while intoxicated is denied, the
accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur.
Decision Date: June 04, 2013