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The Supporting Deposition: Key to Defense of a Simplified Traffic Information

BY EDWARD D. LOUGHMAN, III*

The supporting deposition is the key to the in-court1 defense of any charge brought on a simplified traffic2 information. Not only is the information provided by the deposition necessary to flesh out the bare bones allegations found in a simplified traffic information, but the absence or inadequacy of the duly demanded supporting deposition can often provide grounds for a mandatory dismissal of the charges. 3

A supporting deposition, if timely demanded, is a matter of right to any defendant charged under a simplified traffic information. 4 The deposition "must set forth facts ... which provide a reasonable cause to believe that the defendant committed every necessary element of the offense charged." 5 If a supporting deposition is properly demanded, the People's failure to supply an adequate deposition6 renders the simplified traffic information insufficient on its face, 7 thus providing grounds for dismissal as a defective accusatory instrument. 8

Although the substantive aspects are relatively simple, the procedure is not as straightforward as it may seem. First, the deposition must be demanded prior to trial, prior to the entry of a guilty plea and within thirty days of arraignment. 9 Failure to timely demand the deposition deprives defendant of this useful device and, unless a defective supporting deposition is gratuitously provided by the prosecution, 10 defendant is also deprived of a valuable opportunity to challenge the accusatory instrument on the grounds of sufficiency. 11

Although the time frame to challenge an insufficient supporting deposition is relatively uncomplicated, the procedure to dismiss for failure to provide any deposition is not as clear. Once an improper deposition is received, a written motion to dismiss is made specifying the objections. It must be made prior to trial and within forty-five days of arraignment, if feasible. 12 When the motion is grounded in defendant's failure to receive any deposition at all, however, the point of accrual is not as clear.

Since the statute does not require the People to produce the supporting deposition within a specific period of time, the point at which the right to a dismissal accrues is not readily apparent. Several courts have required that it be provided at least the day before trial. 13 However, since the motion must be on paper, 14 and upon reasonable notice to the People, 15 the logistics of the motion are difficult. Since the grounds for dismissal do not accrue until the eve of trial, it is difficult to give "reasonable notice" to the People without either adjourning the trial date or by making the motion prematurely, thereby alerting the police officer and finding the motion denied when the supporting deposition is delivered on the eve of trial. At least in the Ninth and Tenth Judicial Districts, the safest procedure is to serve written notice of motion on the day of trial and returnable in a reasonable time. 16 In addition, the same motion should be made orally. Although the motion to dismiss will adjourn the trial date, it will not enlarge the People's time to provide the supporting deposition, 17 nor are the People entitled to an adjournment or their own motion for the specific purpose of providing a supporting deposition. 18

The supporting deposition should be demanded any time that a defense to a simplified traffic information is in order. If no deposition, or an inadequate supporting deposition, is received a timely motion to dismiss will likely close the matter. Even if an adequate deposition is received and trial must be had, the defense has at least some notice of the nature of the charge and some ammunition for cross-examination.

© Westchester County Bar Association 1985 reprinted with permission


*Associated with Muldoon & Morgan, New Rochelle, New York.

1"In-court" is crucial because traffic charges returnable before an Administrative Adjudication Bureau are governed by Article 2-A of the Vehicle and Traffic Law and parts 121-126 of the Regulations of the Commissioner of Motor Vehicles, 15 N.Y.C.R.R. Parts 121-126. The Criminal Procedure Law and, specifically, the provisions relating to supporting depositions are inapplicable. Application of Sulli, 55 A.D. 2d 457, 390 N.Y.S. 2d 758 (4th Dep't 1977); Application of Tipon, 82 Misc. 2d 657, 372 N.Y.S. 2d 131 (Sup. Ct. Monroe Co. 1975), aff'd, 52 A.D. 2d 1065, 384 N.Y.S. 2d 324 (4th Dep't 1976). The use of an Administrative Adjudication Bureau for the adjudication of traffic offenses when the penalty does not include imprisonment is available to any city having a population of 200,000 or more. Vehicle & Traffic Law §225(1), 227(3). The constitutionality of Article 2A has been upheld by the Court of Appeals in the face of both equal protection (discriminating between cities on account of size) and due process challenges (streamlined procedures). Matter of Rosenthal (Hartnett), 36 N.Y. 2d 269, 367 N.Y.S. 2d 247 (1975).

2Although this article is concerned with simplified traffic informations, the right to a supporting deposition applies to other simplified informations such as a simplified parks information, Crim. Proc. Law §100.10(2)(b), or simplified environmental conservation information, Crim. Proc. §100.10(2)(c), as well.

3Although the dismissal is without prejudice to the filing of another information, People v. Bock, 11 Misc. 2d 350, 353 N.Y.S. 2d 647, 650-51 (Co. Ct. Broome Co. 1974); People v. Hartman,123 Misc. 2d 553, 473 N.Y.S. 2d 935 (City Ct. White Plains 1984) another information is rarely filed. Theoretically, however, a second information charging a violation generally could be filed as late as one year after the dismissal because the period from the commencement to the dismissal of the defeated information tolls the running of the Statute of Limitations. Crim. Proc. Law §30.10(4)(b).

4Crim. Proc. Law §100.25.

5Crim. Proc. Law §100.25; People v. Key, 87 Misc. 2d 262, 91 N.Y.S. 2d 781 (App. Term, 9th and 10th Jud. Dist. 1976), aff'd, 45 N.Y. 2d 111, 408 N.Y.S. 416 (1978); People v. Hust, 74 Misc. 2d 887, 346 N.Y.S. 2d 303, 307 (Co. Ct. Broome Co. 1973).

6The term People is used generally. It is the police officer's duty to provide the supporting deposition. Crim. Proc. Law §100.25(2). In some jurisdictions, the police officer also acts as prosecutor. In other jurisdictions, the Corporation Counsel, the District Attorney or a special prosecutor represents the people.

7Crim. Proc. Law §100.42(2); People v. Hust, 74 Misc. 2d 887, 346 N.Y.S. 2d 303, 307 (Co. Ct. Broome Co. 1973).

8Crim. Proc. Law §170.30(l)(a); 170.35(l)(a).

9Crim. Proc. Law §100.25(2). The deposition can be demanded in person or by mail, either in conjunction with a not guilty plea by mail or subsequently. People v. Di Gioia, 98 Misc. 2d 359, 413 N.Y.S. 2d 825 (App. T. 9th and 10th Dist. 1978). An exception to the thirty day period is provided if the defendant is not notified of his or her right to a supporting deposition. In such a case, the thirty day period does not commence until the defendant is so notified. People v. Di Gioia, supra, as required by CPL 170.10(4)(c). As a practical matter, however, this exception is rarely available when the defendant appears in person because the notice is routinely given at arraignment. This toll of the thirty day period can be important, however, when the defendant pleads not guilty by mail. Although sufficient notice could be printed on the appearance ticket, Crim. Proc. Law §170.10(5); it rarely is. E.g., People v. Di Gioia, supra.

10E.g., People v. Key, 45 N.Y. 2d 111, 116, 408 N.Y.S. 2d 16, 19 (1978).

11People v. Kay, 86 Misc. 2d 796, 384 N.Y.S. 2d 365 (City Ct. New Rochelle 1976).

12Crim. Proc. Law §255.20(1). Obviously, if the deposition were not received within 45 days of arraignment the motion could not have been made within 45 days. In such a case, presumably, the Court would use its discretion under Section 255 and extend the time. See, People v. Fattizzi, 98 Misc. 2d 288, 413 N.Y.S. 2d 804 (App. Term 9th and 10th Jud. Dist. 1978).

13People v. Fattizzi, 98 Misc. 2d 288, 413 N.Y.S. 2d 804 (App. Term 9th and 10th Jud. Dist. 1978); People v. DeFeo, 77 Misc. 2d 523. 355 N.Y.S. 2d 905 (App. Term, 9th and 10th Jud. Dist. 1974); People v. Zagorsky, 73 Misc. 2d 420, 341 N.Y.S. 2d 791 (Co. Ct. Broome Co. 1973). The District Court of Nassau County, however, without citing Fattizzi, Zagorsky or DeFeo, held that providing the deposition on the day of trial prior to the swearing of witnesses was sufficient. People v. Presti, 115 Misc. 2d 550, 454 N.Y.S. 2d 393 (Dist. Ct. Nassau Co. 1982).

14Some local courts will entertain the motion orally on the day of trial. If the People object, however, the motion should be denied, People v. flay, 58 A.D. 2d 588, 395 N.Y.S. 2d 105 (2d Dep't 1977), People v. Key, 87 Misc. 2d 262, 391 N.Y.S. 2d 781 (App. Term 9th and 10th Jud. Dist. 1976), aff'd 45 N.Y. 2d 111, 408 N.Y.S. 916 (1978), though, as a practical matter, the defense could then seek an adjournment for the purpose of making such a motion. But see People v. Presti, 115 Misc. 2d 550, 454 N.Y.S. 2d 393 (Dist. Ct. Nassau Co. 1982).

15Crim. Proc. Law §§170.45 and 210.45.

16People v. Fattizzi, 98 Misc. 2d 288, 413 N.Y.S. 2d 804 (App. Term 9th and 10th Jud. Dist. 1978).

17Id.

18People v. DeFeo, 77 Misc. 2d 523, 355 N.Y.S. 2d 905 (App. Term, 9th and 10th Jud. Dist. 1974); Id.; People v. Zagorsky, 73 Misc. 2d 420, 341 N.Y.S. 2d 791 (Co. Ct. Broome Co. 1973).

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