The People, Appellant,v.Daria N. Epakchi, Respondent.BriefN.Y.April 24, 2018APL-2016-00232 Suffolk County Traffic Parking and Violations Agency Index No. 131207806 Appellate Term, Second Department Calendar No. 2014-01047 SCR Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Appellant, against DARIA N. EPAKCHI, Respondent. >> >> REPLY BRIEF FOR APPELLANT Paul Margiotta, Executive Director S.C.P.T.V.A. TRAFFIC & PARKING VIOLATIONS AGENCY COUNTY OF SUFFOLK Attorneys for Appellant H. Lee Dennison Building 100 Veterans Memorial Highway Hauppauge, New York 11788 631-853-4049 By: Justin W. Smiloff Assistant County Attorney/ Traffic Prosecutor Date Completed: June 1, 2017 To Be Argued By: Justin W. Smiloff Time Requested: 30 Minutes i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................. ii POINT I This Honorable Court has jurisdiction to review the Appellate Term’s Order reversing the judgment of conviction and dismissing the subject simplified traffic information ................................................................................................................. 1 POINT II People v. Nuccio, 78 N.Y.2d 102 (1991) authorizes re-filing of a charge dismissed for failure to timely provide a supporting deposition by simplified traffic information ..................................................................................... 5 POINT III The Appellate Term’s decisions in this Case and other cases including Meisels, Rathgeber, Berger, and Rosenfeld do conflict with Nuccio ....................................... 9 POINT IV Here Respondent-Defendant’s characterization of the accusatory instrument that she was prosecuted via as a “superseding uniform traffic ticket” is incorrect ...... 11 CONCLUSION ....................................................................................................... 12 ii TABLE OF AUTHORITIES Page Cases People v. Aucello, 146 Misc. 2d 417 (App. Term, 2nd Dep’t., 9th and 10th Jud. Dists. 1990) .... 3, 4, 9, 10 People v. Berger, 16 Misc. 3d 133 (A) ( App. Term., 2nd Dep’t., 9th and 10th Jud. Dists. 2007) ....... 4, 9 People v. D’Alessandro, 13 N.Y.3d 216 (N.Y. 2009) ....................................................................................... 2 People v. Giles, 73 N.Y.2d 666 (N.Y. 1981) ....................................................................................... 2 People v. Jackson, N.Y. 2d 172 (N.Y. 1996) ........................................................................................... 8 People v. Kancharla, 23 N.Y.3d 294 (N.Y. 2014) ....................................................................................... 2 People v. Key, 45 N.Y.2d 111 (N.Y. 1978) ....................................................................................... 7 People v. Meisels, 31 Misc. 3d 143 (App. Term,, 2nd Dep’t., 9th and 10th Jud. Dist. 2011) ................ 3, 9 People v. Nuccio, 78 N.Y. 2d 102 (N.Y. 1991) ................................................................................ 3-12 People v. Rathberger, 23 Misc. 3d 130 (A) (App. Term, 2nd Dep’t., 9th and 10th Jud. Dists. 1994) ......... 3, 9 People v. Rosenfeld, 163 Misc. 2d 982 (App. Term, 2nd Dep’t., 9th and 10th Jud. Dists. 1994) .............. 4, 9 iii Statutes N.Y. C.P.L. § 70.10 .................................................................................................... 7 N.Y. C.P.L. § 100.25.............................................................................................. 7, 8 N.Y. C.P.L. § 100.40.............................................................................................. 7, 8 N.Y. C.P.L. § 170.30.................................................................................................. 3 N.Y. C.P.L. § 450.90.................................................................................................. 1 1 PEOPLE-APPELLANT’S REPLY BRIEF The People-Appellant, submit this reply brief in response to the brief submitted by the Respondent-Defendant and in further support of the People’s arguments. POINT I This Honorable Court has jurisdiction to review the Appellate Term’s Order reversing the judgment of conviction and dismissing the subject simplified traffic information. Respondent-Defendant argues that the Appellate Term’s Order dismissing the simplified traffic information was granted “explicitly in the exercise of discretion” and he argues therefore that the “jurisdictional predicate of CPL 450.90 (2) (a) is not satisfied and such dismissal is therefore outside the scope of this Court’s review.” (Respondent-Defendant’s Brief Pgs. 6-7). Respondent- Defendant’s assertion is incorrect. Initially, it must be noted that Respondent- Defendant already set forth the identical argument in his letter to Chief Judge DeFiore opposing the People’s application requesting that this Court review the Appellate Term’s decision in this case and that Chief Judge DeFiore rejected such argument and granted the People’s application. Therefore, since this Court has already determined any question of jurisdiction, Respondent-Defendant’s 2 argument is of no import. Moreover, this Matter clearly comes within this Court’s jurisdiction as C.P.L. Section 450.90 (2) allows this Court to review the reversal of a judgment, sentence or order of a criminal court if: This Court determines that the intermediate appellate court’s determination of reversal or modification was on the law alone; OR Upon the law and such facts which, but for the determination of law, would not have led to reversal or modification. How the lower court cached its decision is not determinative as this Court has held that it is not bound by an intermediate appellate court’s characterization of an order and must determine on its own “whether a reviewable legal question exists.” See e.g. People v. D’Alessandro, 13 N.Y.3d 216, 218-219 (N.Y. 2009) citing People v. Giles, 73 N.Y.2d 666, 669-670 (N.Y. 1981), See also People v. Kancharla, 23 N.Y.3d 294, 306 (N.Y. 2014). In Giles, the intermediate appellate court had stated that its determination was “on the law and in the exercise of discretion.” Giles, 73 N.Y.2d at 668. This Court determined in Giles that despite the intermediate appellate court’s language recitation therein, such order was reviewable by this Court because the 3 lower Court’s opinion showed that such Court’s decision was based on a purely legal determination rather than an exercise of discretion. Id at 668. The Appellate Term is basing their decision on the law here regardless of how their Order is characterized and thus such Order is properly reviewable by this Court. The People’s Brief here presented that, in 1990, the Appellate Term of the Second Department, Ninth and Tenth Judicial Districts decided People v. Aucello, 146 Misc. 2d 417 (App. Term, 2nd Dep’t., 9th and 10th Jud. Dists. 1990) in which it held that the People MUST demonstrate “Special Circumstances” before prosecuting a defendant on a traffic information alleging the same charge out of the same incident as a simplified traffic information that was previously dismissed against that Defendant where a supporting deposition was not timely served. Therefore, the Aucello Case created a legal principle. Approximately one year after Aucello, this Court in People v. Nuccio, 78 N.Y.2d 102 (N.Y. 1991) effectively overruled Aucello by holding that the Criminal Procedure Law, specifically Section 170.30 thereof, does not prohibit the renewal of prosecution on a facially sufficient information after a matter is dismissed for failure to timely provide a supporting deposition. Subsequent to this Court’s holding in Nuccio, in this Case and every other case involving the same issue including but not limited to, People v. Meisels, 31 Misc. 3d 143 (A) (App. Term, 2d Dep’t., 9th&10th Jud. Dists. 2011); People v. 4 Rathgeber, 23 Misc. 3d 130 (A) (App. Term, 2d Dep’t., 9th & 10th Jud. Dists. 2009); People v. Berger, 16 Misc. 3d 133 (A) (App. Term, 2d Dep’t., 9th and 10th Jud. Dists. 2007); People v. Rosenfeld, 163 Misc. 2d 982 (App. Term, 2d Dep’t., 9th &10th Jud. Dists. 1994) the Appellate Term has ignored the legal principle set forth by this Court in Nuccio and instead followed the legal principle it set forth in own decision in Aucello. Therefore, in this Case and all it progeny, the Appellate Term is including in their decisions “as an exercise of discretion” to avoid review by this court while undeniably basing their decisions on the litany of cases cited here, by applying the legal principal they developed in Aucello and ignoring the controlling case law set forth by this Court in Nuccio. If intermediate appellate courts are permitted to ignore controlling law from the highest court in New York State couched as an “exercise of discretion” this Court’s power as the State’s highest Court would be severely eroded and the concept of controlling law would be vitiated. Accordingly, the People urge this Court to see the long practice of the Appellate Term to apply law overturned by this Court routinely to all cases similar to the instant case and reaffirm the Chief Judge’s determination that a reviewable legal issue exists here. 5 POINT II People v. Nuccio, 78 N.Y.2d 102 (1991) authorizes re-filing of a charge dismissed for failure to timely provide a supporting deposition by simplified traffic information. Respondent-Defendant argues that People v. Nuccio, 78 N.Y.2d 102 (1991) allows a charge alleged via a simplified traffic information and dismissed due to the failure to timely provide a supporting deposition only to be re-filed using a long form information. (Respondent-Defendant’s Brief Pgs. 7-11). Here District Court Judicial Hearing Officer Allen Mathers held in his March 24, 2014 decision denying Respondent-Defendant’s pre-trial motion to dismiss the re-filed accusatory instrument, that the re-prosecution of a traffic violation does not require a long form information if as here no arrest was made. See Judge Mathers Decision Dated March 27, 2014 Pg. 3. Judge Mathers also found that a simplified traffic information combined with a supporting deposition is identical in form, substance and purpose to a long form information and that such format is the proper format to be used before the Suffolk County Traffic and Parking Violations Agency. See Id. The People urge this Court to accept Judge Mathers’ holding and uphold the finding that refiling in this matter can be done 1) via long form information or simplified traffic information and 2) that a simplified information combined with a supporting deposition is jurisdictionally sufficient on its face. 6 In further support of the People’s position that re-filing via a long-form information is NOT required, nowhere in its opinion in Nuccio, does this Court explicitly state or imply that the ONLY way that an accusatory instrument that was dismissed may be re-filed is via a long form information. Rather a long form information was used in Nuccio because the charges at issue unlike the charge here, included not only traffic infractions but also Driving While Intoxicated, a misdemeanor offense. In fact this Court in Nuccio stated the following regarding re-prosecution: The short answer to whether prosecution can be renewed on a facially sufficient information following such a dismissal is that it may because the Criminal Procedure Law does not prohibit it (citations omitted). Moreover, the history on the subject makes it clear that the Legislature did not intend to foreclose re-prosecution of non-felony charges when the information is dismissed for legal insufficiency. Nuccio, 78 N.Y.2d at 104. (Emphasis added) In other words, the only pre-requisite to a renewed prosecution is that the accusatory instrument be a facially sufficient information. This Court has held that: 7 “A simplified traffic information, to be sufficient on its face, need only comply with the requirements of the Commissioner of Motor Vehicles; it need not provide on its face reasonable cause to believe defendant committed the offense charged. (N.Y. CPL 100.25 100.40 (2).” People v. Key, 45 N.Y.2d 111, 115-116 (N.Y. 1978); See also Nuccio, 78 N.Y.2d at 104. When a defendant requests or is voluntarily furnished with a supporting deposition, such must “contain 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." N.Y. C.P.L. §100.25 (2). “Reasonable cause” is defined as “[…]evidence or information which appears reliable and discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” N.Y. C.P.L. § 70.10 (2). The re-filed simplified traffic information and supporting deposition here are clearly facially sufficient based on the standards set forth by this Court in Key and Sections 70.10 and 100.25. The accusatory instruments sets forth the date, time and place of the violation, the statute violated and specifically how such was 8 violated and identifies the violator by name, date of birth, address and driver identification number and the vehicle the violation occurred in by make, model, color and license plate number. Therefore, the only prerequisite set forth by Nuccio that Respondent-Defendant be prosecuted via a facially sufficient information is satisfied here. Respondent-Defendant further argues that to allow Defendant-Respondent to be prosecuted via another simplified traffic information would render Criminal Procedure Law §§ 100.25 and 100.40 (2) meaningless. (Respondent’s Brief Pg. 11). Such argument is also without merit as the purpose of the cited Sections is to assist a defendant in preparing for trial by providing her with specific factual allegations. Criminal Procedure Law §§ 100.25 and 100.40 (2) cannot reasonably be read to impose the draconian remedy of barring the People from ever prosecuting a defendant again in view of the matter was not decided on the merits. Instead this Court has found that the teaching of cases like Nuccio is that courts should be wary of imposing the harsh remedy of dismissal in the absence of explicit statutory direction. See People v. Jackson, N.Y. 2d 172 (N.Y. 1996). The People submit that the purposes of the cited Statutes were achieved here as 9 Defendant-Respondent was provided with a detailed supporting deposition to assist her and her attorney in preparing a defense to the Charge at issue. Accordingly, for the reasons above, the Respondent-Defendant’s argument that the charge could only be re-filed via a long form is entirely without merit. POINT III The Appellate Term’s decisions in this Case and other cases including Meisels, Rathgeber, Berger, and Rosenfeld do conflict with Nuccio. Incredibly, Respondent-Defendant argues that the Appellate Term’s decision here and in cases involving the same issue including People v. Meisels, 31 Misc. 3d 143 (A) (App. Term, 2d Dep’t., 9th&10th Jud. Dists. 2011); People v. Rathgeber, 23 Misc. 3d 130 (A) (App. Term, 2d Dep’t., 9th & 10th Jud. Dists. 2009); People v. Berger, 16 Misc. 3d 133 (A) (App. Term, 2d Dep’t., 9th and 10th Jud. Dists. 2007); People v. Rosenfeld, 163 Misc. 2d 982 (App. Term, 2d Dep’t., 9th &10th Jud. Dists. 1994) do not conflict with this Court’s decision in Nuccio and instead “harmoniously expand” on it. (Respondent-Defendant’s Brief Pgs. 12-13). Such argument is entirely without merit. As discussed in detail in the People’s Brief, the Appellate Term held in People v. Aucello, 146 Misc. 2d 417 (App. Term, 2nd Dep’t., 9th and 10th Jud. 10 Dists. 1990) that the People “must” demonstrate “Special Circumstances” before prosecuting a defendant on a traffic information alleging the same charge out of the same incident after the matter was dismissed against that defendant due to a supporting deposition not being served timely. This Court in Nuccio, decided one year after the Aucello decision, that prosecution was permitted on a facially sufficient information after a matter is dismissed for failure to timely provide a supporting deposition. Nowhere in this Court’s opinion in Nuccio or any other matter has this Court imposed a “special circumstances” requirement. Rather than following the binding precedent of Nuccio, the Appellate Term applies the case law in Aucello and dismisses all prosecutions on refiled facially sufficient informations based upon lack of “special circumstances” and supplements these decisions based upon bad law with referencing “in the interest of justice” in their decisions in what can only be an attempt to support the dismissal based upon bad law, in degradation of Nuccio. Therefore, the Appellate Term in this Case and in the plethora of other cases it decides addressing the instant legal issue has set forth an entirely different legal standard than the standard set forth by this Court in Nuccio and there is nothing “harmonious” about it. 11 POINT IV Here Respondent-Defendant’s characterization of the accusatory instrument that she was prosecuted via as a “superseding uniform traffic ticket” is incorrect. Respondent-Defendant argues that the accusatory instrument she was prosecuted via was a “superseding uniform traffic ticket.” (Respondent- Defendant’s Brief Pgs. 7-10). However, such a characterization is incorrect as the accusatory instrument that Defendant-Respondent was prosecuted on did not “supersede” anything. Rather the prosecution involving the original uniform traffic ticket, Uniform Traffic Ticket Number 131103090 was terminated and the prosecution of Defendant-Respondent here, via an entirely new and distinct accusatory instrument, Uniform Traffic Ticket Number 131207806, constituted a separate and distinct proceeding. Respondent-Defendant’s Argument to the contrary is without merit. The People will not address Respondent-Defendant’s contentions on pages 14-18 of her Brief here regarding whether “special circumstances” are present in this Case since it is the People’s position that Nuccio does not require “special circumstances” be present before a charge alleged by a simplified traffic 12 information dismissed for failure to timely provide a supporting deposition may be re-filed. CONCLUSION For the reasons set forth both herein and on all the papers heretofore filed in this matter , the arbitrary and capricious standard created by the Appellate Term of the Second Department, Ninth and Tenth Judicial Districts creates a divide with all other Judicial Districts of the State that apply this Court’s holding in Nuccio and therefore must be overturned. Dated: Hauppauge, New York June 1, 2017 Respectfully submitted, PAUL MARGIOTTA, ESQ. Executive Director S.C.P.T.V.A. Attorney for Respondent 100 Veterans Memorial Hwy Hauppauge, NY 11788 By: ________________________ JUSTIN W. SMILOFF, ESQ. Assistant County Attorney/Traffic Prosecutor 13 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 500.13(c) that the foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by § 500.1(h) is 2,308. Dated: June 1, 2017 Respectfully submitted, PAUL MARGIOTTA, ESQ. Executive Director S.C.P.T.V.A. Attorney for Respondent 100 Veterans Memorial Hwy Hauppauge, NY 11788 By: ________________________ JUSTIN W. SMILOFF, ESQ. Assistant County Attorney/Traffic Prosecutor