Justice Court of the Town of Webster, Monroe County, July 16, 2019

Thomas A. Corletta for defendant.

Sandra J. Doorley, District Attorney (Heather P. Manly of counsel), for plaintiff.

The defendant was charged with common-law driving while intoxicated, Vehicle and Traffic Law § 1192 (3), leaving the scene of a property damage accident, Vehicle and Traffic Law § 600 (1) (a), and refusal to take the roadside breath test, Vehicle and Traffic Law § 1194 (1) (b), by simplified traffic informations.^[FN1] Said accusatory instruments alleged that the incidents complained of occurred on November 18, 2018, at approximately 11:20 p.m. on South Avenue in the Village of Webster and were so dated. Those simplified traffic informations were affirmed by Officer M. Nicosia of the Webster Police Department. The defendant was brought into court on that date for an off-hours arraignment at approximately 12:05 a.m. on Monday, November 19, 2018. An attorney from the Monroe County Public Defender's Office was called to the court to represent the defendant at that arraignment. However, the defendant refused the services of the assistant public defender, because he wanted to hire Thomas A. Corletta, Esq., as his attorney. Nevertheless, said public defender remained to provide any assistance to the defendant he could under the circumstances. The balance of the arraignment was adjourned to later that day at 2:00 p.m. for purposes of the appearance of the said private attorney. In the meantime, bail was set in the amount of $2,500 cash or $7,500 bond. The defendant bailed out later that morning, which resulted in the balance of the arraignment being adjourned to the court's regular disposition calender on December 5, 2018. Nevertheless, the defendant retained Attorney Corletta on November 19, 2018, who faxed to the court on that date a "Request for Supporting Deposition Pursuant to CPL § 100.25" relative to each of the uniform traffic informations. The court issued an order [*2]to Officer Nicosia on November 27, 2018, directing the issuance of the supporting depositions. The remainder of the arraignment took place on December 5, 2018, with Attorney Corletta appearing for the defendant and Assistant District Attorney Heather Manly appearing for the People. At that time defense counsel again requested supporting{**64 Misc 3d at 973} depositions for all uniform traffic informations. No supporting depositions were executed by Officer Nicosia, who left the Webster Police Department soon after the issuance of said tickets. On or about December 28, 2018, new uniform traffic informations and supporting depositions were filed with the court by the Webster Police Department, signed by Officer Webster. The uniform traffic informations were dated November 28, 2018. The supporting depositions were affirmed on November 18, 2018. As a courtesy the court clerk mailed those documents to the District Attorney and the defense counsel on same day they were received by the court, to wit: December 28, 2018, which was 39 days after the initial request for the supporting depositions.

The People then filed with the court, on or about March 20, 2019, new accusatory instruments for each of said three original charges along with the supporting deposition affirmed by Officer Webster on November 18, 2018, relative to the driving while intoxicated charge. Also filed with the court was an undated form entitled "Supporting Deposition/Bill of Particulars" affirmed by Officer Thomas Turner on "Page 2 of 3" relative to all three charges. The defendant, accompanied by his attorney, was arraigned on those accusatory instruments on the said date of filing during a regular disposition calender of the court, to wit: March 20, 2019. The matter was adjourned for argument of motions. On May 24, 2019, after a pretrial conference, based on the discussions had therein, the court dismissed both sets of the uniform traffic informations, because no supporting depositions relative to the tickets issued by Officer Nicosia or Officer Webster were provided to defendant's attorney within 30 days of the request for same as required by CPL 100.25 (2).^[FN2]

That left the court with the three accusatory instruments executed and filed by the Assistant District Attorney, which were filed to supercede the previously filed uniform traffic informations. Defense counsel filed motions, dated April 16, 2019, requesting that the said accusatory instruments filed by the Assistant District Attorney be dismissed on grounds that the uniform traffic informations cannot be superceded by an information or prosecutor's information and that the informations were insufficient on their face, and on speedy trial grounds. The People filed a notice of cross motion and a responding affirmation in opposition thereto.{**64 Misc 3d at 974}

What kind of accusatory was filed with the court?

Can a uniform traffic information be superceded by prosecutor's information?

Is an accusatory instrument determined to be a nullity restored to effectiveness once the basis for the nullity is removed?

Type of Accusatories Filed

The accusatory instruments filed with the court on March 20, 2019, were labeled, respectively, "Accusatory Instrument Information" regarding the charge of common-law driving while intoxicated, Vehicle and Traffic Law § 1192 (3), "Information" regarding the charge of leaving the scene of a property damage incident without reporting, Vehicle and Traffic Law § 600 (1) (a), and "Information" regarding the charge of refusal to submit to a roadside breath test, Vehicle and Traffic Law § 1194 (1) (b). It was initially unclear whether they would constitute an information or a prosecutor's information. CPL 1.20 (4) states that an

" '[i]nformation' means a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, none of which is a felony, and which may serve both to commence a criminal action and as a basis for prosecution thereof."

CPL 1.20 (6) states that a

" '[p]rosecutor's information' means a written accusation by a district attorney, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, none of which is a felony, and which serves as a basis for prosecution thereof" (emphasis added).

Furthermore, CPL 100.10 (3) states that

"[a] 'prosecutor's information' is a written accusation by a district attorney, filed with a local criminal court, either (a) at the direction of a grand jury pursuant to section 190.70, or (b) at the direction of{**64 Misc 3d at 975} a local criminal court pursuant to section 180.50 or 180.70, or (c) at the district attorney's own instance pursuant to subdivision two of section 100.50, or (d) at the direction of a superior court pursuant to subdivision one-a of section 210.20, charging one or more persons with the commission of one or more offenses, none of which is a felony. It serves as a basis for the prosecution of a criminal action, but it commences a criminal action only where it results from a grand jury direction issued in a case not previously commenced in a local criminal court" (emphasis added).

Certainly, regardless of what the said accusatory instruments are labeled, they are written accusations filed by a district attorney. If they were an information that would make the Assistant District Attorney a witness in the case. This court does not believe that was the intent of the Assistant District Attorney. Nor would classifying those accusatories as informations be in accordance with CPL 1.20 (6) or CPL 100.10 (3) as set out above. The fact that said accusatories are accompanied by a supporting deposition does not change any of those facts. Again, in the opinion of this court, that makes those accusatories prosecutor's informations.^[FN3]

Superceding of Uniform Traffic Informations

The designation of prosecutor's information is important because said accusatories were filed to supercede the previously described uniform traffic informations. CPL 100.50 (1) and (2) govern superceding informations and prosecutor's informations.^[FN4] "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." (People v Lights, 63 Misc 3d 430, 432 [2019, Crimi, Jr., J.] [emphasis omitted].) In other words, a{**64 Misc 3d at 976} prosecutor's information cannot be used to supercede a complaint or as in this case a uniform traffic information. However, there does not appear to be any prohibition to an information or complaint superceding a simplified traffic information. Thus the court disagrees with defense counsel, who stated in his affirmation that "[i]t therefore does not matter whether these newly filed documents are Informations or Prosecutor's Informations." Furthermore, "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."^[FN5] Certainly at the time the prosecutor's informations were filed with the court, neither of the two sets of uniform traffic informations had yet been dismissed by the court for the failure to provide supporting deposition within 30 days of request.

In any event, both subdivisions of CPL 100.50 permit an information or prosecutor's information to be superceded by a prosecutor's information. For reasons stated above, that section would not permit the uniform traffic information that had been filed with the court to be superceded by a prosecutor's information filed by the Assistant District Attorney. That would mean that the prosecutor's informations filed herein with the court for purposes of superceding the uniform traffic informations would be a nullity.

Revival of Accusatory Instruments

That begs the question as to whether the dismissal of the uniform traffic informations after the filing of the prosecutor's information would result in revival of the prosecutor's informations. At the point of the dismissal of the original uniform traffic informations, the prosecutor's informations would be the only accusatory instruments before the court, which includes the supporting depositions issued in conjunction with the dismissed uniform traffic informations. CPL 160.50 (1) requires that upon the dismissal of the charges before the court, the clerk of the court must seal the file of the defendant. That section states as follows:

"Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision three of this section, unless the district attorney upon motion with not less{**64 Misc 3d at 977} than five days notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his or her attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the record of such action or proceeding shall be sealed." (CPL 160.50 [1].)

As previously stated, the court ordered the dismissal of the two sets of uniform traffic informations on May 24, 2019. CPL 160.50 (3) (b) and CPL 170.30 (1) (f) define what is considered to be a termination in favor of a defendant. The latter section includes a "legal impediment to conviction of the defendant for the offense charged" as being a termination in favor of the defendant. A dismissal for failure to provide a supporting deposition would certainly fall under that provision. To date no motion was received from the District Attorney requesting that the file remain open. Nor have the People filed a notice of appeal. (See People v Cordeiro, 24 Misc 3d 526, 529 [2009, DiSalvo, J.] [wherein this court stated, "Criminal Procedure Law § 160.50 is quite specific. It requires that '(u)pon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision three of this section . . . the record of such action or proceeding shall be sealed' "].) However, in that case the time for the People to appeal had expired. The time between the order of dismissal and the refiling of the charges using supporting depositions from the first case was approximately 53 days. Thus the main issue was not the 30-day period itself, but whether the 30-day period ran without a written order of dismissal being served on the People. Since that time it has been held "that a statute authorizing an appeal from an 'order'—as opposed to a 'written order'—should be construed to permit an appeal from either a written or oral order." (People v Cooper, 19 NY3d 501, 508 [2012].) This would mean that the time to appeal runs from the date of the oral order of dismissal. This court would agree with the holding in People v Bundy (60 Misc 3d 518, 520 [2018, Lomenzo Jr., J.]) wherein it states, citing CPL 160.50 (3) (b), "Thus, prior to a lapse of 30 days from the date of an oral order, the case is not yet sealed and the people are free, during{**64 Misc 3d at 978} such period, to make use of any and all documents, including copies, in the file of the dismissed action."^[FN6]

Nevertheless, the prosecutor's informations were filed with the court prior to the court's dismissal of the two sets of uniform traffic informations, with the intent of superceding those prior accusatories. As indicated above, prosecutor's informations filed to supercede uniform traffic informations are a nullity. There is no provision in the law that would automatically [*4]restore them to effectiveness once the underlying accusatories were dismissed. Said prosecutor's informations cannot now be considered a basis for prosecution. In such a situation if the People decide to re-prosecute the case, they could do so by refiling new facially sufficient informations. (See People v Nuccio, 78 NY2d 102, 104 [1991].)

The court believes that the accusatory instruments filed by the District Attorney are prosecutor's informations. As stated herein prosecutor's informations cannot be used to supercede uniform traffic informations. Once filed for that purpose they are a nullity. That status is not altered upon the dismissal of the prior uniform traffic informations. Thus the charges of common-law driving while intoxicated, Vehicle and Traffic Law § 1192 (3), leaving the scene of a property damage accident, Vehicle and Traffic Law § 600 (1) (a), and refusal to take roadside breath test, Vehicle and Traffic Law § 1194 (1) (b), are hereby dismissed without prejudice. Based on these rulings the court need not address the remaining issues raised by defense counsel.