District Court of Nassau County, First District, March 15, 2023

N. Scott Banks, Legal Aid Society of Nassau County, Hempstead, for defendant.

Anne T. Donnelly, District Attorney, for the People.

Eduardo Rodriguez Goris, charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and related offenses, has moved this court for relief pursuant to CPL 170.30, 170.35, 100.15, 100.40, 245.20, 245.50, and 30.30 (1) (b).

The defendant was arraigned on October 11, 2022. The matter was subsequently adjourned multiple times at the Government's request. On January 5, 2023, a certificate of compliance (COC) and certificate of readiness (COR) were filed and the Government announced that it was "ready of trial" pursuant to CPL 245.50 (3).

It is undisputed that the Government accumulated 86 days of chargeable time pursuant to CPL 30.30 (1) (b) as of that date.

CPL 30.30 (1) (b) states in pertinent part:

"1. Except as otherwise provided in subdivision three of this section, a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 of this chapter must be granted where the people are not ready for trial within: . . .

"(b) ninety days of the commencement of a criminal action wherein a defendant is [*2]accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony."

CPL 245.50 (3) states:

"Trial readiness. Notwithstanding the provisions of any other law, absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it{**78 Misc 3d at 1033} has filed a proper certificate pursuant to subdivision one of this section. A court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by paragraph (b) of subdivision one of section 245.80 of this article, despite diligent and good faith efforts, reasonable under the circumstances. Provided, however, that the court may grant a remedy or sanction for a discovery violation as provided by section 245.80 of this article."

CPL 100.40 (1) requires, in pertinent part:

"1. An information, or a count thereof, is sufficient on its face when:

"(a) It substantially conforms to the requirements prescribed in section 100.15; and

"(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

"(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.

"2. A simplified information is sufficient on its face when, as provided by subdivision one of section 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." (Emphasis added.)

CPL 100.15 (3) states in pertinent part:

"3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or{**78 Misc 3d at 1034} tending to support the charges . . . The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions." (Emphasis [*3]added.)^[FN1]

The defense contends that the accusatory instrument is not an information and is therefore insufficient as it contained hearsay that was not corroborated until the Government filed additional supporting depositions from Trooper Deanna Miller and Fidhell Figueroa.^[FN2] The Government, relying on People v Hohmeyer (70 NY2d 41 [1987]), counters that the "check-off" box supporting deposition provided with the simplified traffic information is sufficient.

The facts of the instant case indicate that the police did not observe the defendant driving a car that night: According to a supporting deposition (dated Feb. 9, 2023) from Trooper Miller, NYS Troopers arrived at the scene of an accident and were advised by a civilian that an accident had occurred. An investigation led them to the defendant's home where a car, purportedly owned by him, was parked by the curb across the street from{**78 Misc 3d at 1035} the defendant's home. The car appeared to have front-end damage. An interview of the defendant led to admissions that he had been in an accident and had fled the scene. Trooper Miller indicated that the defendant appeared to be intoxicated.

A supporting deposition from Mr. Figueroa, dated January 10, 2023, confirmed that the police were not present at the time of the accident and that the Troopers did not see the defendant operating a motor vehicle.

Inasmuch as the "check-off box" supporting deposition contained hearsay information, it was insufficient to corroborate the simplified traffic information here. The government's reliance on Hohmeyer^[FN3] is misplaced since the police in Hohmeyer personally witnessed the criminal activity. "The People's tender of . . . a deposition voluntarily, rather than waiting for defendant's request, should not obviate the need for the deposition to provide reasonable cause." (People v Key, 45 NY2d 111, 116 [1978].)

The court finds the reasoning in People v Smith (163 Misc 2d 353 [Perinton Just Ct 1994]) very persuasive. Judge Rood's decision provides an excellent [*4]explanation of the proper interpretation of the Criminal Procedure Law as it relates to simplified traffic informations:

"It defies logic, as well as the concepts of fairness and equal protection, for the Court of Appeals to have intended, as the People contend, that its decisions in Hohmeyer . . . and Alejandro [70 NY2d 133 (1987)], decided just two days later, should create two classes of criminal defendants charged with misdemeanors; those charged with traffic related misdemeanors and those charged with Penal Law misdemeanors. The People's position is all the more tenuous when one considers that . . . a defendant charged with a traffic related misdemeanor could be charged by either an information or a misdemeanor{**78 Misc 3d at 1036} complaint and, thereby, undisputedly be entitled to all of the same pleading protection given to a defendant charged with an offense under the Penal Law. To sustain the People's position would require this court to hold that there are two classes of defendants charged with traffic related misdemeanors: those charged by simplified traffic information and those charged by information or misdemeanor complaint. Such a holding cannot be supported by logic or reason. Further, this court does not read Hohmeyer to preclude the application of the principles of Alejandro to a case where the defendant is charged with a misdemeanor by a simplified traffic information." (Smith at 362.)

In addition, the "check-off box" supporting deposition indicates a place of occurrence for the alleged criminal act different from the location indicated in the simplified traffic information: The simplified traffic information states that the incident occurred on the Southern State Parkway, but the "check-off box" supporting deposition indicates that the crime occurred on 59 Nassau Boulevard. There are no known witnesses to the defendant driving drunk on Nassau Boulevard either. It is unclear, from the documents presented by the police to the court, at which location the defendant is alleged to have committed the offenses charged. This does not comply with the requirements laid out in CPL 100.15 and 100.40.

Inasmuch as the simplified traffic information was not converted to an information prior to January 9, 2023, the Government was not ready regardless of their prior CPL 245.50 (3) filing.

Therefore, the court finds that more than 90 days of CPL 30.30 chargeable time has elapsed and this matter must be dismissed.

All other relief requested by the defense is denied as moot.

"The reason for requiring the additional showing of a prima facie case for an information lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law. An information is often the instrument upon which the defendant is prosecuted for a misdemeanor or a petty offense. Unlike a felony complaint (CPL 180.10), it is not followed by a preliminary hearing and a Grand Jury proceeding. Thus, the People need not, at any time prior to trial, present actual evidence demonstrating a prima facie case, as with an indictment following a felony complaint (compare, CPL 190.65 [1] [a], providing that an indictment must be supported by 'legally sufficient evidence' before the Grand Jury to establish that the defendant committed the crime, i.e., 'competent evidence, which, if accepted as true, would establish every element of the offense and the defendant's commission of it' [People v Pelchat, 62 NY2d 97, 105])." (People v Alejandro, 70 NY2d 133, 137-138 [1987].)

"[t]he supporting deposition alleges that the defendant was driving erratically and speeding and that when the officer stopped him, defendant's eyes were glassy, his speech slurred, his motor coordination impaired, and he smelled of alcohol. In addition, it is alleged that defendant admitted he had been drinking and was driving from one bar to another. The supporting deposition meets the requirements of CPL 100.25 (2), in that it contains factual allegations 'providing reasonable cause to believe that the defendant committed the offense or offenses charged.' " (Hohmeyer at 43-44.)