City Court of Rochester, March 1, 2019

Tiffany M. Spangler for defendant.

Sandra J. Doorley, District Attorney (Timothy M. Boucher of counsel), for plaintiff.

On December 10, 2018, defendant was arraigned on simplified traffic informations charging her with driving a vehicle in the incorrect direction upon a roadway designated for one-way traffic (Vehicle and Traffic Law § 1127 [a]), and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), both alleged to have occurred on November 3, 2018. On December 11, 2018, a document titled "Prosecutor's Information" was filed with the court charging defendant with aggravated driving while intoxicated, per se (Vehicle and Traffic Law § 1192 [2-a] [a]), and driving while intoxicated, per se (Vehicle and Traffic Law § 1192 [2]). Defendant was arraigned on the latter charges on January 3, 2019.

Defendant moves to dismiss all the charges. Defendant argues that the charges arraigned on December 10, 2018, were dismissed by operation of law pursuant to CPL 100.50 (2) when defendant was arraigned on the prosecutor's information. Additionally, the prosecutor's information is defective and should likewise be dismissed as it is not authorized pursuant to CPL 100.50 (2). Defendant asserts that CPL 100.50 (2) only permits a superseding prosecutor's information where it charges offenses supported by the allegations and factual part of the original information and/or any supporting depositions. In addition, the crimes charged in the prosecutor's information{**63 Misc 3d at 432} contain factual allegations, specifically, the toxicology report, that were not contained in the original simplified traffic informations and supporting depositions.

The People concede that they filed a prosecutor's information, but oppose defendant's motion arguing that People v Thomas provides the right to file a prosecutor's information charging the defendant with new crimes which, though partially based on new facts, are still supported in the underlying information (4 NY3d 143 [2005]). The People argue that the Thomas Court held that nothing in CPL 100.50 (2) "restricts the People's ability to provide additional factual detail in a new information." (Id. at 147.) With respect to the charges contained in the original simplified traffic informations, the People argue that CPL 100.50 (1) and Thomas permit them to bring a prosecutor's information charging new joinable crimes.

[1] CPL 100.50 (1) addresses the circumstance where a superseding information or prosecutor's information contains at least one of the offenses contained in the first accusatory instrument. CPL 100.50 (2) addresses the circumstance where the superseding prosecutor's information does not contain any of the offenses contained in the first accusatory instrument. Notably and significantly, both sections by their terms apply only to informations or superseding prosecutor's informations, and do not apply to misdemeanor complaints or simplified informations.

Even assuming CPL 100.50 (1) and (2) can be read to apply to a simplified information, the People, statutorily, would be required to comply with CPL 100.10 (3). That section provides that a prosecutor's information can be filed only at the direction of the grand jury; or at the direction of the local criminal court pursuant to CPL 180.50 or 180.70; or at the district attorney's own insistence pursuant to CPL 100.50 (2); or at the direction of superior court pursuant to CPL 210.20. Here, none of these circumstances exist.

Reliance on Thomas is misplaced as the Thomas defendant was originally charged by information and the People filed a superseding and supplemental information. (Thomas, 4 NY3d 143.) As the prosecutor's information filed here is not authorized, the document is a nullity and is dismissed. (See People v Flood, 25 Misc 3d 843 [Nassau Dist Ct 2009]; People v Donnelly, 30 Misc 3d 136[A], 2010 NY Slip Op 52376[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; People v Williams, 32{**63 Misc 3d at 433} Misc 3d 135[A], 2011 NY Slip Op 51460[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; People v Greco, 12 Misc 3d 83 [App Term, 2d Dept, 9th & 10th Jud Dists 2006].) Given that the prosecutor's information is a nullity, the defendant's motion to dismiss the simplified traffic informations is denied as well.

Having held that the December 11, 2018 counts charging Vehicle and Traffic Law offenses cannot be commenced by a prosecutor's information, the issue then becomes what is the appropriate mechanism by which additional charges can be brought.

In 1962, the legislature passed the first statute creating and defining a simplified traffic information. (See Code Crim Pro § 147-a.) At the time, a simplified traffic information had a similar, although not identical, definition to that of today. (Compare Code Crim Pro § 147-a, with CPL 1.20 [5] [b], and CPL 100.10 [2] [a].) While there is scant legislative history on the 1962 statute, Governor Rockefeller filed a memorandum approving the new procedure. (1962 McKinney's Session Laws of NY at 3643.) Specifically,

"[t]he proposed bill will greatly facilitate the prosecution of traffic violations and the submission of conviction certificates to the Department of Motor Vehicles. At the same time, adequate safeguards to the rights of the defendant are provided by the requirement that the defendant be advised by the Court of his right to a bill of particulars of the violation charged and by preserving his right to request a bill of [*3]particulars at any stage of the proceedings." (Id.)

Use of the simplified traffic information carried over from the Code of Criminal Procedure to the Criminal Procedure Law after its passage in 1970. (See generally CPL 1.20 [5] [b]; 100.10 [2] [a].) Moreover, the simplified traffic information was recently described by the Court of Appeals as "a streamlined instrument designed for the expeditious processing of traffic infractions." (People v Fernandez, 20 NY3d 44, 47-48 [2012].) Thus, based on the foregoing, it appears that the legislature's preference was that the prosecution of Vehicle and Traffic Law offenses be commenced by simplified traffic information.

[2] In addition, case law appears to support that Vehicle and Traffic Law prosecutions can also be commenced by information or complaint. The original simplified traffic information sections of the Code of Criminal Procedure permitted Vehicle{**63 Misc 3d at 434} and Traffic Law offenses to be commenced by simplified traffic information, information, or complaint. (Code Crim Pro § 147-b.) While the legislature did not specifically provide for commencement by information or complaint when the Code of Criminal Procedure was replaced with the CPL, the approach was recognized as appropriate by the Court of Appeals in Fernandez. There, the Court observed that "[t]raffic misdemeanors may be prosecuted in criminal court by a misdemeanor information, misdemeanor complaint or simplified traffic information." (Fernandez at 47.) So while the preferred method of commencement of prosecution for Vehicle and Traffic Law offenses seems to be the simplified traffic information, case law allows for commencement by information or complaint.

In summary, the prosecutor's information is a nullity and is dismissed, and the defendant's motion to dismiss the simplified traffic informations arraigned on December 10, 2018, is denied, both without prejudice to the People commencing any additional Vehicle and Traffic Law offenses either by simplified traffic information, information or complaint.