Justice Court of the Town of Newburgh, Orange County, December 7, 2021

Gerstenzang, Sills, Cohn & Gerstenzang, Albany (Jonathan D. Cohn of counsel), for defendant.

David M. Hoovler, District Attorney, Goshen (Joseph J. Gruner of counsel), for plaintiff.

Defendant's motion is decided as follows:

On October 8, 2021, defendant was arrested by New York State Trooper John T. Conroy and charged with aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a] [a]), driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), moving from lane unsafely (Vehicle and Traffic Law § 1128 [a]) and consumption of alcohol in motor vehicle (Vehicle and Traffic Law § 1227 [1]). On October 13, 2021, simplified traffic informations (hereinafter referred to as UTTs) were filed with the court along with a document entitled "Supporting Deposition" and "DWI Bill of Particulars." On October 15, 2021, defendant's attorney faxed a letter to the court requesting that "a copy of the Court's file be faxed to my office." The attorney's letter also requested a supporting deposition pursuant to CPL 100.20 and 100.25 (2). On October 20, 2021, the court complied with the attorney's request and faxed to him, among other documents, the UTTs and the Supporting Deposition/DWI Bill of Particulars and also sent an order to Trooper Conroy directing that he file and serve a supporting deposition pursuant to CPL 100.25 (2). No additional supporting depositions were filed by the trooper.

On November 30, 2021, defendant and attorney Jonathan D. Cohn, Esq., appeared in court for arraignment and entered a plea of "not guilty." When the court began to address the issue of [*2]suspension pending prosecution as required by Vehicle and Traffic Law § 1193 (2) (e) (7), Mr. Cohn orally argued and submitted the instant motion to dismiss, contending not only that defendant's driver's license may not be lawfully suspended pending prosecution (see Pringle v Wolfe, 88 NY2d 426, 432 [1996]) but also that all charges against defendant must be dismissed because the accusatory instruments are defective on their face. The sole ground for the motion is that Trooper Conroy failed to serve him with a supporting deposition and, as such, pursuant to CPL 100.40 (2) and 170.35 (1) (a) the UTTs are insufficient.

It should be noted and emphasized, and there can be no dispute, that the court provided defendant's attorney with the Supporting Deposition/DWI Bill of Particulars five days after{**74 Misc 3d at 186} defendant's attorney requested all court documents and 40 days prior to defendant's arraignment. Defendant's attorney concedes that he received the document, but nevertheless contends that the UTTs must be dismissed because the trooper did not provide him with the supporting deposition and file proof of service of it, citing, as authority, People v Wagschal (59 Misc 3d 29 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

In Wagschal, after receiving a UTT for a traffic infraction, defendant mailed to the court a request for a supporting deposition. Prior to trial, he moved to dismiss and alleged that he mailed to the court a request for a supporting deposition but did not receive one. Defendant's motion was denied because court records showed that a supporting deposition was filed with the court. The Appellate Term, however, determined that there was no proof of service filed to show that the supporting deposition was served on defendant and held "under the particular circumstances of this case" the charge should have been dismissed (id. at 31 [emphasis added]).

The facts and circumstances of this case are clearly distinguishable from those in Wagschal. In Wagschal, defendant alleged that he was not provided with a supporting deposition. Here, defendant's attorney concedes that he was provided with the supporting deposition.

Since the supporting deposition was timely provided to defendant's attorney, defendant's motion to dismiss pursuant to CPL 170.35 (1) is denied. To hold otherwise would favor form over substance. Defendant's attorney received the supporting deposition to which his client was entitled and neither defendant nor his attorney suffered prejudice because it was received from the court rather than from the trooper.

Assuming, arguendo, that defendant is correct and CPL 100.25 (2) requires the UTTs to be dismissed, the court finds that the filed document labeled "Supporting Deposition DWI Bill of Particulars," though not identified as such, is a legally sufficient information which conforms to and satisfies the requirements of CPL 100.15 and 100.40. Specifically, the document specifies the name of the court and the title of the action. It contains an accusatory part, which designates the offenses charged, and a factual part, which contains nonhearsay facts of an evidentiary nature supporting or tending to support every element of the offenses charged and defendant's commission thereof. The document recites that the factual part is based on complainant's personal knowledge and it is subscribed and verified by the complainant.{**74 Misc 3d at 187}

The court finds that the Supporting Deposition/DWI Bill of Particulars, standing alone, is a valid information which substantially conforms with the requirements of CPL 100.15 and, as such, is sufficient on its face (see CPL 100.40 [1]). It serves as the basis both for the commencement of the criminal action against defendant and the prosecution of it (see CPL 100.10 [1]).

Based on the foregoing defendant's motion to dismiss the charge of aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a] [a]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) is denied. However, defendant's motion pursuant to CPL 100.25 (2) to dismiss the simplified traffic informations charging a violation of Vehicle and Traffic Law §§ 1227 (1) and 1128 (a) is granted.