OPINION AND ORDER

This case raises novel issues as to [1] whether non-receipt a supporting deposition pursuant to Criminal Procedure Law §100.25(2) defeats attempted service and [2] whether service must be made on both defendant and her counsel.

Defendant is charged with speeding at 70 miles per hour on Route 25A in the Village of Muttontown, Long Island, New York on August 7, 2013 in violation of Vehicle & Traffic Law §1180(B). Defendant was serviced with a simplified information entitled "Uniform Traffic Ticket" and directed to appear in court on September 12, 2013 or enter a plea by mail before that. Defendant mailed a not guilty plea to the court on August 23, 2013, with a request for a supporting deposition. Her plea listed her address as H. Schonfeld, P.O. Box 465, Old Westbury, NY 11568; and the envelope containing the pleas and request had the same return address.

The People have submitted evidence that, thereafter, a supporting deposition was mailed to defendant at that address by certified mail on September 6, 2013. However, defendant did not pick up the certified mailing and thus, she contends, did not actually receive the supporting deposition. The instructions of the U.S. Postal Service (attached to the People's opposing papers, provide that, when there is such a certified mailing to a Post Office Box, a notification card is placed in the box to alert the recipient that the mailing is waiting for the addressee. Presumably, defendant therefore was aware that the mailing was waiting for her but apparently ignored it. Defendant contends that her failure to receive that mailing compels dismissal.

Thereafter, defendant's counsel mailed a notice of appearance to the Court by letter dated September 27, 2013 (received on September 30, 2013), in which he wrote "demand is hereby made for Supporting Depositions". The People's evidence indicates that another copy of the supporting deposition was then mailed to defendant's counsel on October 1, 2013 as a courtesy.

But, defense counsel says that his law firm did not receive that mailing, which also compels dismissal of the complaint. [*2]

Defendant correctly notes that Criminal Procedure Act §100.25 provides that a supporting deposition must be served within 30 days after a duly-made request., failing which the charge must be dismissed. People v. Perry, 87 NY2d 353, 355-56; People v. Aucello, 146 Misc 2d 417 (App Term 2nd Dept); People v. Rossi, 154 Misc 2d 616, 620-24. Specifically, the statute reads, in pertinent part"

A defendant charged by 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 . . . .To be timely, such a request must . . . be made . . . not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information . . Upon such a request, the court must order the complainant policy officer. . . to serve a copy of such supporting deposition upon the defendant or his attorney, within thirty days of the date such request is received by the court . , , ,."

Thus, a supporting deposition was required to be served within 30 days of the request here.

Defendant contends that dismissal is required because she and her counsel did not receive a supporting deposition. However, the uncontested facts show that a supporting deposition was served in a timely manner on defendant. That is all that was required. The statute refers to and requires "service" of a supporting deposition, not "receipt. That defendant chose to not accept the certified mailing and thus may not have actually receive the supporting deposition does not affect that fact and conclusion.^[FN1] Moreover, a defendant may not avoid or defeat purported service by refusing to accept a properly transmitted certified mail, and non-receipt does not show failure to serve where US Postal Service procedure has been followed and provides for such a situation. See, e.g. McCarthy, 119 Misc 2d at 266-67.

When a defendant is represented by counsel, service should be made on that counsel. Rossi, 154 Misc 2d at 620-21. However, the statute does not require or contemplate two separate requests and two separate services. It speaks of service on one or the other of defendant or his or her attorney. Where service has already been made on the defendant before his or her attorney has even appeared, the People's responsibility under the statute has already been fulfilled. Good practice should prompt the People (as done here) to send another copy to counsel who later appears; but that is a matter of courtesy not right. In any event, at bar, even if one ignores the prior service of the supporting deposition on defendant herself, the evidence presented to the court shows that additional service was made on defense counsel.

Accordingly, the motion to dismiss is denied.

So ordered. Enter.

Dated: January 2, 2014

Muttontown, NY

________________________________________

Martin I. Kaminsky

[*3]Village Justice