The following named papers numbered 3 submitted on this motion Papers Numbered Notice of Omnibus Motion 1 Affidavit in Opposition to Defendant’s Motion 2 Affirmation in Reply to People’s Opposition 3 Eduardo Rodriguez Goris, charged with Driving While Intoxicated (VTL §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 eighty-six (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 that: 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 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 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 that: 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. CPL §100.15 (3) states in pertinent that: 3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or 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 added.1 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.2 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, February 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 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 “check-off box” supporting deposition contained hearsay information, it was insufficient to corroborate the simplified traffic information here. The Government’s reliance on Hohmeyer3 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 N.Y.2d 111, 116, (1978). The Court finds the reasoning in People v. Smith, 163 Misc. 2d 353, 621 N.Y.S.2d 449 (Town Ct. 1994) very persuasive. Judge Rood’s decision provides an excellent 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 N.Y.2d 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 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, supra at p. 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, 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 ninety (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. This constitutes the decision and order of this Court. SO ORDERED. Dated: March 15, 2023
