People of the
State of New York, Plaintiff,
against
Barrington Adams, Defendant.
|
BD8695201
PEOPLE OF THE STATE OF NEW YORK:
By: Alan M. Nelson, Esq.
Special Village Prosecutor
3000 Marcus Avenue
Lake Success, New York 11042
Attorney for Defendant:
Randy Zelin, Esq.
RANDY SCOTT ZELIN, P.C.
110 East 59th Street, 22nd Floor
New York, New York 10022
Sheldon M. Greenbaum, J.
Defendant moves to dismiss a simplified traffic information, pursuant to
§§170.30(1)(f) and 170.35(1)(a), because the supporting deposition of police
officer Drew Haagenson ("Haagenson"), sworn to July 22, 2014 (the "Supporting
Depo."), is allegedly insufficient as a matter of law. For the reasons articulated below, the
Court concludes that the Supporting Depo. served and filed in this proceeding is legally
insufficient as a matter of law and the Simplified Traffic Information must be dismissed
without prejudice.
SUBMISSIONS CONSIDERED
On this motion, the Court has considered the following submissions:
The Notice of Motion to dismiss and the supporting Affirmation of Randy
Zelin, Esq., dated September 19, 2014, with annexed exhibits (the "Zelin Aff.").
The combined Answering Affirmation and Memorandum of Law of Alan M.
Nelson, Esq., dated October 9, 2014, with annexed exhibits (the "Nelson Aff.").
The Affirmation in Reply of Randy Zelin, Esq., dated October 16, 2014,
with annexed exhibits (the "Zelin Reply Aff.").THE FACTUAL ALLEGATIONS OF THE
PARTIES
Defendant was issued Simplified Traffic Information BD8695201 (the
"STI") for allegedly violating section 1151-A of the New York Vehicle and Traffic Law
in that, on May 12, 2014 at approximately 8:15 AM, while operating a motor vehicle,
Defendant failed to yield the right of way to a pedestrian in a crosswalk (Exhibit A to the
Zelin Aff.), resulting in the death of that pedestrian from injuries sustained in the
collision (Zelin Aff., ¶ 4, fn. 1).
Pursuant to an order of this Court, on July 22, 2014, the Supporting Depo.
was completed and sworn to by Haagenson. After describing the alleged facts
surrounding the traffic violation, the Supporting Depo. contained the following
language:
"The above allegations are made on direct knowledge (and/or information
and belief), the grounds being [______]"
Significantly, the Supporting Depo. did not indicate whether Haagenson's
statements were based upon personal knowledge or only upon information and belief. In
any case, no grounds for Haagenson's information and belief were recited in the
Supporting Depo.
The People conceded that Officer Haagenson arrived after, and therefore did
not personally observe, the commission of the offense by Defendant (see Nelson Aff.,
¶ 22 [i.e., "when Officer Haagerson [sic] responded to location..."]; see also Zelin
Reply Aff., ¶¶ 3-4).
However, photos annexed by counsel for Defendant to each of [*2]his affirmations depict that the motor vehicle operated by
Defendant was within the intersection (see Zelin Aff., Exhibit C) and, to adopt the
language of Defendant's own counsel, "there [was] a pool of blood beneath the left front
tire" of Defendant's truck (Zelin Reply Aff., ¶ 7).
Counsel for Defendant also claims that Defendant himself called 911 in
advance of the arrival of Officer Haagenson (Zelin Reply Aff., ¶ 4), although the
basis of that statement is not provided. If indeed accurate, the record on this motion does
not include a recording of the 911 call alleged to have been made by Defendant to the
police.RELEVANT LEGAL
AUTHORITIES
/i>
The form and content of a supporting deposition is prescribed by
Sections 100.20 and 100.25(2) of the Criminal Procedure Law. CPL §100.25(2)
provides in relevant part:
"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." CPL
§100.25(2).
CPL §100.20 further provides:
"A supporting deposition is a written instrument accompanying or filed
in connection with an information, a simplified information, a misdemeanor complaint or
a felony complaint, subscribed and verified by a person other than the complainant of
such accusatory instrument, and containing factual allegations of an evidentiary
character, based either upon personal knowledge or upon information and belief, which
supplement those of the accusatory instrument and support or tend to support the charge
or charges contained therein." CPL §100.20.
Accordingly, for a supporting deposition to be legally sufficient, it must
contain (i) factual allegations of an evidentiary nature which support or tend to support
the charge or charges asserted in the simplified traffic information, as required by CPL
§100.20; and (ii) factual allegations providing "reasonable cause" to believe that
Defendant committed the offense charged, as required by CPL §100.25(2).
The factual allegations of a supporting deposition may be based either
upon personal knowledge or upon information and belief. CPL §100.25(2); CPL
§100.20; People v. Born, 166 Misc 2d 757, 758, 634 N.Y.S. 2d 915, 916
(Just. Ct. Perinton 1995); People v. Lesnak, 165 Misc 2d 706, 708-709, 630
N.Y.S. 2d 459, 460 (Dist. Ct. Suffolk Co. 1995); People v. Dumas, 42 Misc 3d 265, 268, 974 N.Y.S. 2d 921,
923-924 (City Ct. Buffalo 2013); People v. Cordeiro, 18 Misc 3d 1135A, 859 N.Y.S. 897,
2008 W.L. 482475 at p. 2 (Just. Ct. Webster 2008); People v. DeRojas, 180 Misc
2d 690, 691, 693 N.Y.S. 2d 404, 405 (App. T. 2nd Dept. 1999); 32 NY Jur. 2d, Criminal
Law: Procedure, §971.
Section 70.10(2) of the Criminal Procedure Law prescribes the standards for
"reasonable cause," as required by CPL 100.25(2). That provision states in relevant
part:
" 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. Except as otherwise provided
in this chapter, such apparently reliable evidence may include or consist of hearsay." CPL
§70.10(2)
If a complainant/public servant verifies a supporting deposition which is
based upon personal knowledge, the information contained in the supporting deposition
is presumed reliable as a matter of law because the verification of the public official
under oath accords that status to the statements. People v. Born, 166 Misc 2d
757, 761, 634 N.Y.S. 2d 915, 917-918 (Just. Ct. Perinton 1995).
However, where the factual allegations of a supporting deposition are based
only on information and belief, in order to comply with the reliability standard articulated
in CPL 70.10(2), the supporting deposition must explicitly state that the factual
allegations are made upon information and belief, so as to afford the Defendant and the
Court with fair notice that the allegations are not based upon personal knowledge of the
complainant. People v. Born, 166 Misc 2d 757, 761, 634 N.Y.S. 2d 915, 918
(Just. Ct. Perinton 1995) ("...the instrument should specifically state that the factual
allegations are based upon information and belief. This gives the court, the People and
the defendant fair notice that the factual allegations are not based upon the personal
knowledge of the complainant and that further analysis is required to determine if the
instrument is legally sufficient.").
More important, if the supporting deposition is wholly or partially based on
information and belief, the source of the complainant's information and belief must be
specified. People v. Born, 166 Misc 2d 757, 761, 634 N.Y.S. 2d 915, 918 (Just.
Ct. Perinton 1995) ("...the sources of the information should be stated, specifying what
information was provided by which source."); People v. Lesnak, 165 Misc 2d
706, 709, 630 N.Y.S. 2d 459, 461 (Dist. Ct. Suffolk Co. 1995) ("The court rules, then,
that the deposition supporting a simplified traffic information, to the extent it is based on
information and belief, must contain a statement of the source of that information and
belief if it is to be sufficient on its face."); People v. Dumas, 42 Misc 3d 265, 269, 974 N.Y.S. 2d 921,
924 (City Ct. Buffalo 2013) ("However, the deposition supporting a Simplified Traffic
Information, to the extent it is based on information and belief, must contain a statement
of the source of that information and belief if it is to be sufficient "); People v. Malta, 19 Misc 3d
1142A, 867 N.Y.S. 2d 19, 2008 W.L. 2332312 at p. 2 (Just. Ct. Webster 2008)
("Since the trooper did not indicate the source of his information and belief of facts of
the case, the supporting deposition herein must be dismissed as being insufficient on its
face..."); People v.
Cordeiro, 18 Misc 3d 1135A, 859 N.Y.S. 2d 897, 2008 W.L. 482475 at p. 2
(Just. Ct. Webster 2008) ("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."); People v. Pleva, 96 Misc 2d 1020, 1022-1023, 410
N.Y.S. 2d 261, 263 (Dist. Ct. Suffolk Co. 1978); 32 NY Jur. 2d, Criminal Law:
Procedure, §971.APPLICATION OF LAW
TO FACTUAL
ALLEGATIONS
The determinative issue presented in this case is whether the Supporting
Depo. here in controversy was based upon Haagenson's personal knowledge or merely
upon information and belief, the source of which was not disclosed in the Supporting
Depo.
The People argue that the Supporting Depo. was based upon Haagenson's
personal knowledge in that the photographs appended by counsel for Defendant to the
moving papers reflect that the vehicle driven by Defendant was located within the
crosswalk and that, according to the language crafted by Defendant's own counsel, "there
[was] a pool of blood beneath the left front tire" of the vehicle (Zelin Reply Aff., ¶
7).
In sharp contrast, counsel for Defendant urges that the Supporting Depo.
was not based upon Haagenson's personal knowledge because Defendant himself placed
the 911 call to the police which [*3]prompted the arrival
of Officer Haagenson who, accordingly, could not have personally observed the
collision. Consequently, Defendant urges that since the Supporting Depo. was not based
on personal knowledge and did not provide the source of Haagenson's information and
belief, the Supporting Depo. and, with it, the STI, must be dismissed.
The record on this motion is entirely bereft of any factual allegations
indicating that Haagenson possessed personal knowledge of the actual collision.
Apparently, he did not observe the collision since he arrived after it occurred and the
People have not claimed otherwise. Under these circumstances, the Court concludes that
the Supporting Depo. is based solely upon information and belief derived by Haagenson.
Accordingly, the Supporting Depo. is insufficient as a matter of law and the STI must be
dismissed without prejudice. See People v. Nuccio, 78 NY2d 102, 104-105, 575
N.E. 2d 111, 112-113, 571 N.Y.S. 2d 693, 694-695 (1991) (" the Legislature did not
intend to foreclose reprosecution of nonfelony charges when the information is dismissed
for legal insufficiency.... Nor is double jeopardy a bar to the refiling of the charges
against defendant since reprosecution is permitted whenever a dismissal has been
granted on motion by defendant, so long as the dismissal does not constitute an
adjudication on the facts going to guilt or innocence.'") The Court notes that in
dismissing the STI for procedural reasons, it makes no substantive findings as to whether
Defendant committed the violation with which he was charged.
Dated:Port Washington, New York
November 12, 2014
______________________________
Sheldon M. Greenbaum
Village Justice,
Village of Port Washington North