Justice Court of the Town of Webster, Monroe County, January 13, 2020

Michael Pattison for defendant.

Sandra J. Doorley, District Attorney (Alexa Parcell of counsel), for plaintiff.

The defendant was charged with speeding in violation of Vehicle and Traffic Law § 1180 (b) on July 8, 2018, by means of an electronically generated simplified traffic information, which was returnable on August 1, 2018. It alleged that he was driving 85 miles per hour in a 55 miles per hour zone westbound on New York State Route 104. At the same time that the defendant was provided with the said simplified traffic information he was also provided with an electronically generated supporting deposition. On July 10, 2018, defense counsel faxed a letter to the court indicating he had been retained to represent the defendant and was in need of an adjournment. In addition, he requested that a supporting deposition be provided to him. On August 14, 2018, defense counsel faxed another letter to the court requesting a further adjournment of the August 15th court appearance and indicated it was his intention to submit a plea by mail. The matter was then adjourned by the court to September 19, 2018. Prior to that date the matter was adjourned again. Subsequently the court granted defense counsel various other adjournments. In any event, defense counsel finally filed motions dated December 11, 2019, requesting that the said accusatory be dismissed "on the ground of defectiveness, pursuant to CPL § 170.30 (1) (a)," because a supporting deposition was never provided to defense counsel as requested. A review of the court's file does not reveal any request to the New York State Trooper who issued the ticket to issue another supporting deposition.

Is a defendant charged with a violation of the Vehicle and Traffic Law, who has received a supporting deposition at the same time as the issuance of a simplified traffic information, entitled to have a second supporting deposition provided directly to an attorney upon a request for same?

CPL 100.25 (1) states that "[a] simplified information must be substantially in the form [*2]prescribed by the commissioner of motor vehicles, the commissioner of parks and recreation, or the commissioner of environmental conservation, as the case may be." Defense counsel did not raise any objection to the form of the said accusatory. In addition, CPL 100.40 (2) states that

"[a] simplified information is sufficient on its face when, as provided by subdivision one of section{**66 Misc 3d at 766}100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face."

The defendant's motion is based on the requirements of CPL 100.25 (2), which states in pertinent 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. To be timely, such a request must, except as otherwise provided herein and in subdivision three of this section, be made before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto."^[FN1]

The defendant's attorney contends that since a second supporting deposition was not provided to him within 30 days of his request, said simplified traffic information was rendered defective pursuant to CPL 170.30 (1) (a).^[FN2] Certainly, this provision was written before the advent of either "e-tickets" or "e-supporting depositions." In fact, when handwritten simplified traffic informations were issued, supporting depositions were generated at a subsequent time, usually upon request by the defendant or by defense counsel.{**66 Misc 3d at 767}

Counsel for the defendant relies on People v Rossi (154 Misc 2d 616 [Village of Muttontown Just Ct 1992]) in support of his contention that the People must in a timely fashion serve the attorney for the defendant with the supporting deposition if asked to do so despite a supporting deposition having been voluntarily provided to the defendant at the time of the traffic stop. That reliance is misplaced. In that case, defense counsel submitted a letter of representation, dated January 3, 1991, to the court wherein he requested a supporting deposition.^[FN3] A supporting deposition was then duly prepared by the officer in question, dated [*3]January 22, 1991, and was then sent by the police department directly to the defendant at his place of residence rather than to defense counsel on the same date. The same police department employee also sent a copy to the clerk of the court, which was received just before February 8, 1991.^[FN4] The court clerk then took it upon herself to provide a copy to defense counsel who received it just after February 8, 1991, which was more than 30 days after it had been requested by counsel.^[FN5]

The court dismissed the accusatory instrument as being "jurisdictionally defective," because the supporting deposition was not served on the attorney of record for the defendant within the 30-day period required by CPL 100.25 (2).^[FN6] However, the court did not make that decision based solely on the specific language of the statute. That section states,

"If the defendant's request is mailed to the court, the request must be mailed within such thirty day period. Upon such a request, the court must order the complainant police officer or public servant 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, or at least five days before trial, whichever is earlier . . . ." (CPL 100.25 [2] [emphasis added].)

The Town Justice in Rossi stated in his decision that

"[t]he court further holds that CPL 100.25 required that service of the supporting deposition upon defendant's attorney as a matter of statutory interpretation, and that service on the defendant himself{**66 Misc 3d at 768} did not comply with the statute. The language of CPL 100.25 (2) is unclear, on its face, as to who is the proper or permissible recipient of the supporting deposition after defense counsel has entered an appearance. The use of the word 'or' at the beginning of the phrase . . . could be interpreted as a disjunctive to mean that the deposition can be served upon either the defendant or his attorney. However, since all contact, following the entry of an appearance by an attorney, should be only with the attorney, the court interprets the [language of the statute] to be an effort by the Legislature to assure that the supporting deposition be served upon the attorney and not upon the defendant, where he has entered an appearance with the court. Otherwise, a transmittal might go to the defendant without the attorney's knowledge, with the possibility that the defendant (not realizing the significance of what he has received) might not turn it over to his attorney. This is particularly so where, as here, the request for the supporting deposition came from the attorney, not the defendant. A defendant who has elected to proceed through counsel, rather than represent himself, should not be required to assess, and may not be capable of properly assessing, the significance and sufficiency of a supporting deposition on his own. Where the defendant has alerted the court to his desire to have the protection and assistance of an attorney, and an attorney has entered an appearance on his behalf, the defendant's rights are violated if official court papers and communications are thereafter transmitted to the defendant rather than his attorney." (People v Rossi, 154 Misc 2d 616, 621-622 [1992].)

However, in the instant case the electronic supporting deposition was provided to the defendant at the same time he was served the electronic ticket. It has long been held that

"[w]here a supporting deposition is voluntarily supplied within the time during which a defendant, pursuant to CPL 100.25 (2), may demand a supporting deposition, the voluntary providing of that supporting deposition moots the defendant's right to demand one and the People, in voluntarily supplying the supporting deposition, must satisfy the{**66 Misc 3d at 769} requirement of CPL 100.25 (2) that the supporting deposition must provide reasonable cause to believe the defendant committed the offense or offenses charged (People v Key, supra, 87 Misc 2d, at 266; People v Key, supra, 45 NY2d, at 116)." (People v Smith, 163 Misc 2d 353, 360 [1994].)

In a more recent decision involving the issuance of an electronic simplified traffic information and an electronic supporting deposition the court therein stated,

"See also, People v. Corletta, 12 Misc.3rd 666 (2006), 814 NY S. 2d 514, 2006 NY Slip Op. 26150^[FN7] where the defendant formally requested in writing a supporting deposition nine (9) days after the uniform traffic ticket was issued, however the defendant had received an 'e-supporting deposition' at the time of the issuance of the 'e-ticket' uniform traffic ticket, the court held that since the original supporting deposition was not found to be defective, the defendant was in timely receipt of a supporting deposition pursuant to CPL 100.25(2)." (People v Hakimian, 60 Misc 3d 1226[A], 2018 NY Slip Op 51237[U], *2 [Kings Point Just Ct 2018].)

The simplified traffic information was not rendered defective as a result of the People's failure to provide defense counsel with a supporting deposition, since an electronic supporting deposition was previously provided to the defendant at the same time he was served with the electronic simplified traffic information. Therefore, the defendant's motion to dismiss the accusatory as defective is hereby denied.