The People, Appellant,v.Daria N. Epakchi, Respondent.

Brief

N.Y.April 24, 2018

To Be Argued By: Justin W. Smiloff Time Requested: 30 Minutes APL-20 16-00232 Suffolk County Traffic Parking and Violations Agency Index No. 131207806 Appellate Term, Second Department Calendar No. 2014-01047 SCR QJ:ourt of ~ppeal~ STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Appellant, against DARIA N. EPAKCHI, Respondent. BRIEF FOR APPELLANT Date Completed: February 28, 2017 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 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii STATEMENT OF TilE CASE .................................................................................. 1 STATEMENT OF QUESTIONS PRESENTED ....................................................... 2 STATEMENT OF TilE FACTSPROCEDURAL HISTORY .................................. 2 ARGUMENT ............................................................................................................. 6 POINT I Pursuant to People v. Nuccio, 78 N.Y. 2d 102 (N.Y. 1991), the People may refile an information against a defendant when a previous simplified traffic information alleging the same charge based upon the same incident against that Defendant was previously dismissed where a supporting deposition was not timely served "h h . h H • I . t " 6 wzt out avzng to s ow specza czrcums ances. .. ............................ .. I. In this case and in more than a dozen cases involving the same issue, the Appellate Term incorrectly followed its own decision in People v. Aucello, 146 Misc. 2d 417 (App. Term, 2nd Dep't., 9th and lOth Jud. Dists. 1990) even after this Court's controlling decision in People v. Nuccio, 78 N.Y. 2d 102 (N.Y. 1991) ............................ 6 II. The Appellate Term 's "Special Circumstances" requirement is an undefined, capricious and arbitrary standard that is not supported by statute or case law which fails to fulfill the purposes the Appellate Term offers to justify such a repressive requirement ............................................................................... 11 CONCLUSION ........................................................................................................ 16 CERTIFICATE OF COMPLIANCE ....................................................................... 17 TABLE OF AUTHORITIES Page(s) Cases MacFrawn v. Kresler, 88 N.Y. 2d 859 (N.Y. 1996) ............................................................................ 9 Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577 (N.Y. 1998) ............................................................................... 8 People v. Alexander, 2011 NY Slip Op 50942(U) (2011 App. Term 2nd Dep't. 9th and lOth Jud. Dists.) ..................................... ll People v. Aucello, 146 Misc. 2d 417 (App. Term, 2nd Dep't., 9th and 1Oth Jud. Dists. l990) ............................ passim People v. Berger, 16 Misc. 3d 133 (A) (App. Term., 2nd Dep't., 9th and lOth Jud. Dists. 2007) ......................... 3, 5, 10 People v. Gomez, 2009 NY Slip Op 52422 (D.C. Nass. Cty., 1st Dist. 2009) ............................ 1 0 People v. Holden, 44 Misc. 3d 746 (Canandaigua City Crt. 2014) ............................................ 10 People v. Jackson, N.Y. 2d 172 (N.Y. 1996) ................................................................................. 9 People v. Mangano, 2007 NY Slip Op 51915 (Just. Crt. of Ossing, 2007) ................................... 1 0 People v. Meisels, 31 Misc. 3d 143 (App. Term, 2nd Dep't., 9th and lOth Jud. Dist. 2011) ..................... 3, 5, 10, 15 11 People v. Nuccio, 78 N.Y. 2d 102 (N.Y. 1991) ................................................................... passim People v. Quarles, 639 N.Y.S. 2d 638 (Cty. Crt. of Rochester, 1996) ........................................ ! 0 People v. Rathgeber, 23 Misc. 3d 130 (A) (App. Term, 2nd Dep't., 9th and lOth Jud. Dists. 1994) ........................... 3, 5, 10 People v. Rodas, 51 Misc. 3d 1220 (A) (N.Y. Just. Ct. 20 16) .................................................. } 0 People v. Rossi, 54 Misc. 2d 616 (Just. Crt. OfVillage ofMuttontown, 1992) ...................... 10 People v. Rosenfeld, 163 Misc. 2d 982 (App. Term, 2nd Dep't., 9th and lOth Jud. Dists. 1994) ........................... 3, 5, 10 People v. Suarez, 167 Misc.2d 189 (Just. Crt. ofValley Stream 1999) ..................................... 10 Pultz v. Economakis, 10 NY3d 542 (N.Y. 2008) ............................................................................... 9 Statutes N.Y. C.P.L. § 100.40(2) ........................................................................... 5, 14, 15, 16 N.Y. C.P.L. § 170.30 .......................................................................................... 7, 8, 9 N.Y. C.P.L. § 170.30(1)(a) ........................................................................................ 8 N.Y. C.P.L. § 210.20 (4) ............................................................................................ 8 Vehicle and Traffic Law§ 1172 (a) ................................................................... I, 2, 4 Vehicle and Traffic Law § 1192 (3) .......................................................................... 7 iii STATEMENT OF THE CASE The People of the State of New York, (hereinafter "People") appeal to this Court seeking a reversal of an Order of the Appellate Term, Second Department, Ninth and Tenth Judicial Districts (Hereinafter "Appellate Term") dated June 23, 2016 that: 1. Reversed the conviction of DARIA N. EP AK.Clll (hereinafter "Defendant") for a violation of New York State Vehicle and Traffic Law (hereinafter "VTL") § 1172 (a) for failing to stop at a legally posted stop sign in Suffolk County, New York entered on April 17, 2014, by District Court Hearing Officer (hereinafter "DCHO") Judge Paul H. Senzer1 in the Suffolk County Traffic and Parking Violations Agency (hereinafter the "Agency"); and 2. Vacated the March 27, 2014 Order of DCHO Allen S. Mathers that denied Defendant's pre-trial Motion to dismiss the charge against her on the grounds that the charge was based on a simplified traffic information alleging the same charge based upon the same incident as a simplified traffic information that had previously been dismissed because the Defendant was not provided with a requested supporting deposition and substituted its own Order granting such Motion. (A2). 2 The People were granted leave by Chief Judge DeFiore to appeal to this Court via a "Certificate Granting Leave to Appeal" dated November 30, 2016. (A7). The People urge this Court to issue an Order reversing the Appellate Term's June 23, 2016 Order in its entirety and reinstating the determinations of the Trial Court. 1 Paul Senzer is a sitting judge in the Village of East Northport. 2 Numbers following the letter A refer to pages in the Appendix filed with this Brief. 1 STATEMENT OF QUESTIONS PRESENTED 1. Are "special circumstances" required before the People can file a traffic information against a defendant when a previous simplified traffic information alleging the same charge based upon the same incident was previously dismissed because the issuing police officer did not timely serve the Defendant with a supporting deposition? It is respectfully submitted that this question should be answered in the negative. STATEMENT OF THE FACTS/PROCEDURAL HISTORY The Defendant was charged with violating New York State Vehicle and Traffic Law § 1172 (a) by Suffolk County Police Officer David J. Weymouth on September 13, 2013 via Simplified Traffic Information Number B£2196165. At the time of the offense, Defendant was 17 years old and was driving on a probationary driver's license. Defendant's Attorney filed a written motion to dismiss the charge on November 13, 2013, on the grounds that Defendant requested but did not timely receive a supporting deposition. (A57). Defendant's motion was granted. On that same date the People re-filed the charge by filing a Simplified Traffic Information consisting of Ticket Number B£3392045 and a supporting deposition amplifying the charge on Defendant. 2 Defendant through her Attorney then moved to dismiss the Information arguing that the Appellate Term via a line of cases that includes People v. Rosenfeld, 163 Misc. 2d 982 (App. Term, 2nd Dep't., 9th and lOth Jud. Dists. 1994); People v. Berger, 16 Misc. 3d 133 (A) (App. Term., 2nd Dep't., 9th and lOth Jud. Dists. 2007); People v. Ratgeber, 23 Misc. 3d 130 (A) (App. Term, 2nd Dep't., 9th and lOth Jud. Dists. 1994) and People v. Meisels, 31 Misc. 3d 143 (App. Term, 2nd Dep't., 9th and 1oth Jud. Dist. 2011) has found that absent "special circumstances" it is an "abuse of discretion" for a trial court to allow a defendant to be prosecuted on an information filed after a previous Simplified Traffic Information alleging the same charge out of the same incident was dismissed against that Defendant due to the Officer's inability to timely provide a supporting deposition. (A66). The People opposed Defendant's Motion arguing that prosecution on the refiled information was permitted without the need to demonstrate "special circumstances" pursuant to this Court's decision in People v. Nuccio, 78 N.Y. 2d 102 (N.Y. 199l).(A77). DCHO Judge Allen S. Mathers3 denied Defendant's Motion citing this Court's decision in Nuccio holding the People may prosecute on the refiled information without the People having to show "special circumstances." (A8). The Matter proceeded to Trial on April 17, 2014 in front of DCHO Judge Paul H. Senzer. During the trial the People's witness Suffolk County Police Officer 3 Allen S. Mathers is a sitting judge in the Village of Garden City. 3 David J. Weymouth testified that he observed from a distance of approximately 30 feet, a BMW SUV operated by Defendant travel at a speed between 35 and 40 miles per hour through the intersection of Carrregie A venue and Midland Street in the Town of Huntington, County of Suffolk, State of New York without stopping at the stop sign posted at that intersection. (A 16-17, 29). At the conclusion of the trial, Judge Senzer found Defendant guilty of violating New York State Vehicle and Traffic Law § 1172 (a). (A49-50). After reaching his verdict, Judge Senzer considered the Defendant's driving record before imposing sentence and noted that the Appellant was involved in a motor vehicle accident that resulted in property damage on September 20, 2013, which was only seven days after the traffic stop at issue. (A49-50, 52). After considering sentencing recommendations made by both sides, Judge Senzer sentenced Appellant to pay a fine of $100 plus a $55 Suffolk County Administrative Fee and an $88 New York State Surcharge. (A41). Defendant appealed her conviction to the Appellate Term of the Second Department, Ninth and Tenth Judicial Districts. The People submitted a Brief in opposition. Attorneys for both sides then argued their respective positions before a three judge panel of the Appellate Term on May 5, 2016. On June 23, 2016 the panel issued a unanimous Order: 1. Vacating Appellant's Conviction; and 2. Vacating DCHO Judge Mathers March 27, 2014 Order denying Defendant's pre-trial motion to dismiss and dismissing the case. (A2). 4 The Appellate Term stated in its decision here that it has "consistently reversed judgments of conviction, as a matter of discretion in the interest of justice, where absent special circumstances warranting the reprosecution of a defendant, the People had proceeded to trial on a refiled accusatory instrument, after an earlier simplified traffic information, charging the same offense based upon the same incident, had been dismissed for failure to serve the defendant with a requested supporting deposition." (A4). The Appellate Term cited its own cases People v. Aucello, 146 Misc. 2d 417 (App. Term, 2nd Dep't., 9th and 1oth Jud. Dists. 1990); People v. Rosenfeld, 163 Misc. 2d 982 (App. Term, 2nd Dep't., 9th and 1Oth Jud. Dists. 1994); People v. Berger, 16 Misc. 3d 133 (A) (App. Term., 2nd Dep't., 9th and 1oth Jud. Dists. 2007); People V. Rathgeber, 23 Misc. 3d 130 (A) (App. Term, 2nd Dep't., 9th and lOth Jud. Dists. 1994) and People v. Meisels, 31 Misc. 3d 143 (App. Term, 2nd Dep't., 91h and lOth Jud. Dist. 2011) in support of its position and found that no "special circumstances" warranting reprosecution were present in this Case. (A4-5). The Appellate Term further held "A ruling to the contrary would defeat the very purpose of CPL 100.40 (2), disregard the interest of judicial economy, and erode the confidence of the public in the criminal justice system." (AS). The People applied for and were granted leave to appeal to this Court. A "Certificate Granting Leave to Appeal" was issued by Chief Judge DeFiore on 5 November 30, 2016. (A7). At the consent of both parties, the People's time to file a Brief in this Matter was extended from February 1, 2017 until March 1, 20 17. ARGUMENT POINT I Pursuant to People v. Nuccio, 78 N.Y. 2d 102 (N.Y. 1991), the People may refile an information against a defendant when a previous simplified traffic information alleging the same charge based upon the same incident against that Defendant was previously dismissed where a supporting deposition was not timely served without having to show "special circumstances". I. In this case and in more than a dozen cases involving the same issue, the Appellate Term incorrectly followed its own decision in People v. Aucello, 146 Misc. 2d 417 (App. Term, 2nd Dep't., 9th and 1oth Jud. Dists. 1990) even after this Court's controlling decision in People v. Nuccio, 78 N.Y. 2d 102 (N.Y. 1991). 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 1oth 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. The Appellate Term noted in Aucello that there was a divide among trial courts within the Second Department on the issue and there was no appellate case law addressing the question. However, approximately one year after Aucello, this Court in People v. Nuccio, 18 N.Y.2d 6 102 (N.Y. 1991) held 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. Nowhere in the Nuccio opinion or in any other case decided by this Court is there a requirement that the People show "special circumstances" before the case may be re-filed. Accordingly, the Nuccio decision clearly overruled Aucello and is the controlling case law. In Nuccio, the Defendant was charged via Simplified Traffic Informations with Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192 (3) and Failing to Keep Right in violation of Vehicle and Traffic Law§ 1120 (a). She timely requested supporting depositions and such were not furnished to her within the time allotted by the Criminal Procedure Law. Accordingly, the Defendant therein moved to dismiss the charges on the ground that she was not timely provided with the supporting depositions. Such motion was granted by the trial court and the prosecution re-filed the charges. The Defendant in Nuccio made a motion to dismiss the re-filed Information and such was denied by the trial court and she subsequently pled guilty to both charges. On appeal, an Intermediate Appellate Court reversed the convictions on the grounds that the re-filed information was foreclosed by the prior dismissal and dismissed both charges. This Court reversed the Intermediate Appellate Court and re-instated the convictions. 7 In a unanimous opinion authored by Judge Simon, this Court found that: 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. This Court reasoned in Nuccio, that when the New York State Legislature enacted the Criminal Procedure Law in 1970, it specifically barred the re- prosecution of indictments that were dismissed for legal insufficiency by enacting Criminal Procedure Law Section 210.20 (4). See !d. at 105. Judge Simon's opinion went on to state: " ... Nevertheless, it failed to include a similar bar for informations dismissed on those same grounds pursuant to CPL 170.30 (1) (a). We conclude, therefore, that the different treatment accorded indictments and informations in the statute manifests the Legislature's intention to permit reprosecution for nonfelony charges when the information is dismissed for legal insufficiency." (Citations omitted) !d. This Court's interpretation of CPL § 170.30 in Nuccio, is in accordance with the ordinary cannons of statutory construction. "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583, 673 NYS2d 8 966 (N.Y. 1998). "[W]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning." Pultz v. Economakis, 10 NY3d 542, 547, 860 NYS2d 765 (N.Y. 2008). Therefore, following the cannons of ordinary statutory construction set forth above, if the Legislature had intended to bar re- prosecution of traffic informations, it would have explicitly done so in CPL § 170.30. Accordingly, this Court's decision in Nuccio clearly allows the People to re-file a charge by information when, as here, a previous simplified traffic information alleging the same offense out of the same incident was dismissed for failure to provide a supporting deposition without having to articulate "special circumstances" to justify the refiling. This Court subsequently reiterated its decision in Nuccio in MacFrawn v. Kresler, 88 N.Y. 2d 859 (N.Y. 1996) which noted that the People could refile a charge after the underlying accusatory instrument was dismissed for legal insufficiency. Additionally, since Nuccio, 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). Moreover, subsequent to Nuccio, Courts throughout New York State have found that re-prosecution is permissible after a Simplified Traffic Information is dismissed for failure to timely supply a supporting deposition prior to the case being decided on its merits without the added requirement of "special 9 circumstances". The following are just some of the plethora of cases in which courts across the State have respected this Court's controlling decision in Nuccio: People v. Rossi, 54 Misc. 2d 616 (Just. Crt. of Village of Muttontown, 1992); People v. Quarles, 639 N.Y.S. 2d 638 (Cty. Crt. of Rochester, 1996); People v. Suarez, 167 Misc.2d 189 (Just. Crt. of Valley Stream 1999); People v. Mangano, 2007 NY Slip Op 51915 (Just. Crt. of Ossing, 2007); People v. Gomez, 2009 NY Slip Op 52422 (D.C. Nass. Cty., 1st Dist. 2009); People v. Holden, 44 Misc. 3d 746 (Canandaigua City Crt. 2014); People v. Rodas, 51 Misc. 3d 1220 (A) (N.Y. Just. Ct. 2016). In fact, the Appellate Term of the Second Department, Ninth and Tenth Judicial Districts is the ONLY Court in New York State that has chosen to ignore this Court's controlling decision in Nuccio and rather than following the controlling case law set forth therein, the Appellate Term in this Case and more than a dozen other cases involving the same issue including People v. Meisels, 31 Misc. 3d 143 (A) (App. Term, 2d Dep't., 91h&l0th Jud. Dists. 2011); People v. Rathgeber, 23 Misc. 3d 130 (A) (App. Term, 2d Dep't., 9th & 101h Jud. Dists. 2009); People v. Berger, 16 Misc. 3d 133 (A) (App. Term, 2d Dep't., 9th and lOth Jud. Dists. 2007); People v. Rosenfeld, 163 Misc. 2d 982 (App. Term, 2d Dep't., 9th & 1Oth Jud. Dists. 1994) has chosen to follow its own decision in Aucello that was effectively overruled by Nuccio. Inexplicably, the Appellate Term in its 10 opinion in this Matter and in its opinion in the other aforecited Matters cited Nuccio preceded by a "cf' without parenthetical explanations of the analogy provided. (AS). Clearly, the Appellate Term's decision in this Case is incorrect as it ignores the controlling case law and must be reversed. II. The Appellate Term's "Special Circumstances" requirement is an undefined, capricious and arbitrary standard that is not supported by statute or case law which fails to fulfill the purposes the Appellate Term offers to justify such a repressive requirement. In addition to being in degradation of this Court's decision in Nuccio, the Appellate Term of the Second Department, Ninth and Tenth Judicial Districts "special circumstances" requirement is a standard that has never been defined, which provides absolutely no direction to lower courts and unlike this Court's decision in Nuccio, is not supported by case law or statute. Incredibly, in the one case where the Appellate Term determined that a "special circumstance" was present, People v. Alexander, 2011 NY Slip Op 50942(U) (20 11 App. Term 2nd Dep't. 9th and lOth Jud. Dists.), it failed to set forth in its opinion what the "special circumstances" were. Moreover, in it's opinion in this Matter, the Appellate Term failed to even address the People's argument made both in their Brief and during oral that "special circumstances" were present in this Case. Specifically, the People argued that the following constituted "special circumstances": 1. The need to hold an inexperienced, teenage driver, accountable for her dangerous conduct. Defendant was a 17 year olq probationary driver at the 11 time of the violation at issue and here she was found guilty of going through a stop sign at approximately 35 to 40 miles per hour seven days before she was involved in a motor vehicle accident; and 2. The Agency had commenced operations less than five months before Defendant's request for a supporting deposition and was undertaking the enormous task of handling tens of thousands of cases that were transferred to it from the New York State Department of Motor Vehicles Traffic Violations Bureau along with hundreds of new cases that arose each week and was still in the process of developing rules, policies and procedures to efficiently handle cases. If arguendo, the Appellate Term applied their "special circumstances" requirement, either of the above circumstances should have qualified as "special circumstances" and the fact that the Appellate Term chose to ignore them entirely in its decision indicates that the Appellate Term's "special circumstances" requirement is nothing more than an arbitrary standard used to permit refiling where they alone deem it permissible. By creating this "special circumstances" standard the Appellate Term also has created a divide in the judicial departments and unequal treatment of defendants across the State. As aforestated, every court outside of the jurisdiction of the Appellate Term of the Second Department for the Ninth and Tenth Judicial Districts follows this Court's controlling decision in Nuccio not requiring "special circumstances" before an accusatory instrument may be refiled in the circumstances herein. Therefore, prosecutors prosecuting cases outside the jurisdiction of the Appellate Term are free to re-file accusatory instruments without having to meet the burdensome, un-defined and arbitrary 12 "special circumstances" standard. This leaves defendants across the State subject to unequal treatment, depending on the judicial district where their case is filed. Prosecutors within the Ninth and Tenth Judicial Districts must determine if "special circumstances" exist before re-filing an accusatory instrument in the circumstances herein and after they may obtain a conviction, that conviction is subject to reversal based upon a capricious and arbitrary standard created by the Appellate Term. By creating this capricious and arbitrary standard, the Appellate Term is free to pick and choose which defendants it deems should be prosecuted and which should not. This absent standard leaves prosecutors to determine "special circumstances," without any clear criterion upon which to base the decision and moreover, how to defend the position upon appeal. Defendants who commit offenses within the jurisdiction of the Appellate Term are thus able to escape being held accountable for their actions if the Appellate Term determines, without accountability, whether or what, they deem to be "special circumstances" are not present. This is a windfall not enjoyed by defendants who commit offenses outside the jurisdiction of the Appellate Term. Therefore, the "special circumstances" standard is inequitable, arbitrary, capricious and unfair to prosecutors limited by it and defendants not benefitting from it. Moreover, the "special circumstances" requirement fails to fulfill the purposes for which the Appellate Term justifies the requirement. In this Case, and 13 tn its opinions in the other cited cases decided thereby, the Appellate Term reasoned that "A ruling to the contrary would defeat the very purpose of CPL 100.40 (2), disregard the interest of judicial economy, and erode the confidence of the public in the criminal justice system." (AS). However, this reasoning is flawed. The "special circumstances" standard fails to in any way respect the interest of "judicial economy" and in fact it has the opposite effect. The numerous cases decided by the Appellate Term indicate the arbitrary standard imposed by it and in degradation of Nuccio causes extensive litigation in the Ninth and Tenth Judicial District, while the other Judicial Districts follow the controlling case law established by this Court. In no way is judicial economy promoted by the Appellate Term's decision. It is impossible for the "special circumstances" requirement set forth by the Appellate Term to ever lead to judicial economy the standard is completely arbitrary. The Appellate Term's decision leaves prosecutors and trial judges to guess what "special circumstances" are and if they are present in any particular case. Here there were multiple circumstances the People concluded rose to the level of "special circumstances." The Appellate Term disagreed without even addressing the issue. Additionally, allowing defendants to escape responsibility for their actions due to an arbitrary and undefined standard serves to erode rather than foster the confidence of the public in the criminal justice system. Here the Defendant, a 17 14 year old probationary driver at the time of the offense, was found guilty beyond a reasonable doubt of passing through an intersection at the speed of 3 5-40 miles per hour without stopping at the stop sign controlling traffic thereat after a trial. This conduct was clearly dangerous and might have resulted in a motor vehicle crash, causing property damage and possibly serious physical injury or death to another motorist or a pedestrian. A short time after Defendant engaged in such conduct she was in fact involved in a motor vehicle crash. However, the Appellate Term has chosen to allow Defendant to escape responsibility for the offense because an arbitrary, undefined "special circumstances" standard was not met. Similarly, in Rathgeber the Defendant therein had been convicted by the trial court of driving 97 miles per hour and in Meisels, the Defendant was found guilty by the trial court of following another vehicle too closely. Yet the Appellate Term allowed the Defendants in those cases to escape responsibility for their dangerous conduct because "special circumstances" were not present. The actual effect of the Appellate Term's "special circumstances" standard erodes the public's confidence in the judicial system. Prosecuting defendants for driving in a manner that endangers the safety of others serves to foster public confidence in the judicial system. Finally, the Nuccio standard serves to meet rather than defeat the purposes of CPL § 100.40 (2). Clearly, the purpose of § 100.40 (2) is to ensure that 15 defendants are prosecuted based upon a sufficient accusatory instrument. Here Defendant was prosecuted on a sufficient accusatory instrument. The People refiled an Information consisting of the accusatory portion and the factual portion by filing and serving a Uniform Traffic Ticket combined with a detailed supporting deposition. Defendant's Attorney had nearly four months to use that supporting deposition and accusatory instrument to prepare for trial. Therefore, the protection afforded by§ 100.40 (2) were satisfied. CONCLUSION 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. Dated: Hauppauge, New York February 16, 20 17 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 16 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 3,840. Dated: Hauppauge, New York February 16, 2017 Respectfully submitted, PAUL MARGIOTTA, ESQ. Executive Director S.C.P.T.V.A. Attorney for Respondent 1 00 Veterans Memorial Hwy Hauppauge, NY 11788 By: __________________ __ WSTIN W. SMILOFF, ESQ. Assistant County Attorney/Traffic Prosecutor 17 2011 NY Slip Op 50942(U) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES ALEXANDER, Appellant. 2010-488 WCR. Supreme Court, Appellate Term. Second Deparbnent Decided May 20, 2011. PRESENT: TANENBAUM, J.P .• LaCAVA and IANNACCI, JJ. In August 2007, defendant was charged in a simplified traffic information with falling to yield the right of way while intending to tum left {Vehicle and Traffic Law § 1141 ). In June 2008, the simplified traffic information was dismissed because the People had failed to provide defendant with a supporting deposition. In August 2008, the People filed an information charging defendant with the same offense. Thereafter. defendant moved to dismiss the information, which motion was denied by order dated January 12. 2009. Following a nonjury trial, defendant was convicted of failing to yield the right of way while intending to tum left. A review of the record Indicates that special circumstances existed which warranted the reprosecution of defendant upon the subsequently filed accusatory instrument charging the same offense (cf. People v Rathgeber, 23 Mise 3d 130[A], 2009 NY Slip Op 50653[U] [App Term, 9th & 1Oth Jud Dists 2009]; f.P.JI.el~ Ya .. €iu!IJ1~!, ... 1§ .. Ml~9. .. ~.~""l.2~[A]. 2007 NY Slip Op 51498 [App Term, 9th & 10th Jud Dists 2007]; People v Rosenfeld. 163 Mise 2d 982.983 [App Term. 9th & 10th Jud Dlsts 1994); People v Aucello. 146 Mise 2d 4'17 [App Term. 9th & 10th Jud Dlsts 1990]). Consequently, defendant's motion to dismiss the information was properly denied. The evidence adduced at trial, viewed In the light most favorable to the People (see People v Contes. 60 NY2d 620. 621 £1983]), was legally sufficient to establish all of the elements of falling to yield the right of way while intending to turn left (Vehicle and Traffic Law§ 1141) beyond a reasonable doubt. Furthermore, in fulfilling this court's responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson. 9 NY3d 342. 348-349 ~. we nevertheless accord great deference to the factfinder's opportunity to view the witnesses. hear their testimony, observe their demeanor, and assess their credibility (see People v Lane. 7 NY3d 888.890 [20061; Peoole v 8/eak/ev. 69 NY2d 490.494 £198n>. Upon a review of the record, we find that the verdict was not against the weight of the credible evidence (see people v Romero. 7 NY3d 633. 643-646 £2006]). Tanenbaum. J.P., LaCava and lannacci, JJ., concur. 2009 NY Slip Op 52422(U) THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MINOR E. GOMEZ, Defendant. NA 12743/99 District Court of Nassau County, First District. Decided November 6, 2009. Kathleen Rice, District Attorney, Mineola, NY, Sharifov & Russell, LLP, Hempstead, NY. SUSAN T. KLUEWER, J. Defendant's motion for an order dismissing the accusatory instrument as defective is denied. Defendant Is accused by three simplified traffic informations filed under this docket of aggravated unlicensed operation of a motor vehicle in the third degree, operating an uninsured motor vehicle, and operating an unregistered motor vehicle. All three simplified informations have printed on them, at the top, "UT 3-3(7/96)," indicating each is a "uniform ticket" in a form created in July, 1996. All three charges stem from an incident that is alleged to have occurred on May 5, 1999. Defendant was directed to appear to respond to the simplified informations on June 21, 1999. He did not do so, and the court (Reilly, J.) issued an arrest warrant (but see CPL 120.20[1]) and a "scoff." Sometime thereafter, the court file, consisting of the simplified traffic informations and a copy of the original court file jacket, was archived onto microfilm and, it appears, the original documents were destroyed. On April 28, 2009, almost 10 years after he was required to have appeared, Defendant presented himself in Arraignment 8, at which time the court (Delligati, J.) vacated the warrant and scoff, arraigned Defendant, released him on his own recognizance, and placed the matter in Part 3 for further proceedings. By written document delivered to the clerk on May 6, 2009, Defendant, through counsel, demanded a supporting deposition as to each of the three simplified traffic informations. Although notation of receipt of the demand is noted on the new court file jacket, there is no indication that the court adually ordered that the issuing officer serve and file a supporting deposition. It is not disputed that no such service and filing have been effectuated. In accordance with the usual practice (cf. 22 NYCRR 91.7 and 91.18), no appearance ticket (see CPL 150 et seq.) has ever been part of the court file. Defendant now seeks dismissal of each of the simplified traffic informations as facially defective. In addition to setting forth that no supporting depositions have been served, and in anticipation of the People's argument that he has waived his right to supporting depositions by failing to timely demand them, he asserts, through counsel and 11[u]pon information and belief' -the source of which he does not set forth ,_ that none of the three simplified traffic informations "contained the form statement set forth in CPL 100.25(4) advising [him] of his absolute right to have a supporting deposition served upon him," that, therefore, the time to demand supporting depositions did not begin to run until he first appeared in court, and that, therefore, his demand for supporting depositions is timely. He further asserts, without citation to authority. that it is the People's burden to demonstrate that the appearance tickets Issued to him in conjunction with the simplified informations contain the statutorily required notice of entitlement to a supporting deposition upon timely demand therefor. He also urges that even if the People prove that the appearance ticket issued to him contained the required notice, the waiver of the right to request and receive a supporting deposition that is statutorily imputed to him "could not possibly have been voluntary since he had not appeared in court to learn the indispensable role it would serve in preparing a defense." He thus concludes that since, according to him, his demand is timely, and since no supporting depositions have been served, each simplified traffic Information must be dismissed as facially defective. The People in opposition urge that to accept Defendant's arguments is to sidestep the purpose behind the 1996 amendments to CPL 100.25 that were enacted to prevent scofflaw defendants from "unjustly benefitting from their own recalcitrance." They also urge that Defendanrs argument is premised on the "incredible" assumption that he alone of all recipients of tickets issued in a form approved by the Commissioner of Motor Vehicles pursuant to 15 NYCRR 91.5 was in receipt of a defective ticket. They do concede that, in spite of their efforts, they cannot provide a blank sample of the form because "UT-3.3(7/96)" has not been in use for "an indeterminate number of years," and the Nassau County Police Department "as the issuing agency does not archive samples of defunct forms." Defendant in reply asserts for the first time that prosecution by microfilm copy of a simplified traffic information is improper, suggests that it was unlawful to have disposed of the original simplified informations, and urges that these facts alone warrant granting his motion. He also theorizes that if "UT-3.3(7/96) is no longer in use, it must be because it was defective." A simplified traffic information is a peculiar form of accusatory instrument -an unverified one (see CPL 100.30[1][d]; cf. 15 NYCRR 91.18)- that is authorized in limited, statutorily specified cases as an alternative to prosecution by long form information (see CPL 100.10[2][a]; People v. Green. 192 Mise 2d 296. 745 NYS2d 656 [Nassau Dist Ct, 2002]; People v. Quarles. 168 Mise 2d 638. 639 NYS2d 661 [Rochester City Ct. 1996. Byrnes. J.J). Prosecutions by simplified traffic information are governed by somewhat different standards than those applicable to prosecutions by long form information, the most notable being that pleading requirements are far less factually demanding (see People v. Nuccio. 78 NY2d 102. 571 NYS2d 693 [19911; People v. Baron. 107 Mise 2d 59. 438 NYS2d 425 [App Term, 2d Dept. 1980]; People v. Green. supra; People v. Quarles. supra>. The requirements for facial sufficiency of a simplified traffic information thus are merely that the accusatory instrument be in brief, simplified form in accordance with the directives of the commissioner of motor vehicles (see CPL 100.10[2][a], 100.40[2]). But, where a defendant accused by simplified traffic Information elects to be put on notice of more factual detail, he or she, upon timely request, is entitled "as of right" to a supporting deposition, i.e., a verified statement containing factual allegations augmenting the statements of the accusatory instrument and which support or tend to support the charge (cf. CPL 100.20, 100.25). The request for supporting depositions is made, not of the People, but of the court, and, upon a timely request, the court "must" order that complainant police officer serve the supporting depositions within 30 days of the court's receipt of the request, and to file with the court the supporting depositions and proof of their service (CPL 1 00.25[2]; People v. ••• r .. Bradv. 196 Mise 2d 993. 768 NYS2d 157 [Nassau Dist Ct, 2003]). Failure to timely serye the supporting depositions renders the simplified traffic informations for which they were demanded defective and, although the People are free to commence a separate action by filing a long form information (see People v. Nuccio. supra ), the court is divested of jurisdiction to proceed with the prosecution by the simplified accusatory documents . An accusatory instrument simply must allege the elements of the offenses charged and acts or conduct which would reasonably Indicate the defendant's commission of such offenses. Therefore, as long as these basic requirements are met, accusatory Instruments containing a recitation of factual allegations that appear to be "awkwardly" drawn or "bare boned" may still suffice for pleading purposes. See People v. Allen. 92 NY2d 378. 385. 681 NYS2d 216 (1998>; People v. Love. 306 NY 18 <1953). Defendant is charged with disorderly conduct under P.L. §240.20(5), which states that a person Is guilty of such charge when, ''with intent to cause public Inconvenience, annoyance or alarm or recklessly creating a risk thereof, he obstructs vehicular or pedestrian traffic." "In order to establish a prima facie case of this offense an accusatory instrument must establish (1) that a defendant was observed (2) obstructing either pedestrian or vehicular traffic and (3) that the defendant engaged in this conduct with intent to cause public Inconvenience, alarm or annoyance or that he recklessly created a risk of doing so." People v. Cohen, 6 Mise 3d 1019(A), 800 NYS2d 352 (NY Crim. Ct. 2005). Under this statute, the proscribed conduct must involve situations which are "carried beyond the concern of the individual disputants to a point where they had become a potential or immediate public problem." People v. Munafo. 50 NY2d 326. 331. 428 NYS2d 924. 926-927 <1980). In deciding whether a defendant's conduct "carries public ramifications. courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny.~~ /d. However, an information "is not jurisdictionally infirm due to the absence of specific allegations concerning the precise number of pedestrians affected by [defendant's] conduct or the degree of inconvenience or annoyance experienced by such pedestrians, matters which [are] best left for the trial." People v. Jones. 13 Mise 3d 94. 95. 827 NYS2d 403. 404 (App. Term 1st Dept. 2006). Here, the factual allegations in the accusatory instrument set forth that the deponent/arresting officer observed that on December 1, 2006, from 4:15 a.m. through 4:50 a.m., after yelling and cursing at the pollee officer, the defendant lied down on the pavement. blocking the front door of the police headquarters, and hindering the officers from having access to the door. In addition, the accusatory instrument sets forth that the defendant's conduct was done with the intent to cause public Inconvenience, annoyance and alarm and recklessly creating a risk thereof. Since the factual allegations set forth that the deponent/arresting officer observed the defendant's conduct, they also establish reasonable cause to believe the defendant committed the offense. Moreover, since the defendant allegedly blocked the front of the police headquarters, a public place, by lying on the pavement over a thirty-five minute time period, which hindered officers from having access to the door, this conduct, if true, involves a public inconvenience sufficient for pleading purposes to satisfy the statute. A person acts "intentionally" with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. P.L. §15.05(1); ~!OP.!! .. ~~)-I~.w~['!!tN 1 .M.~~~ .. ~.~ 9..Q?,L~)..:_781 ~Y~2~ . .§_?.7 _lli:.Y.:.9..~~ C?.!!!!l· Ct. ~093]_. "Intent cannot be the subject of a non-hearsay evidentiary allegation unless there are facts from which intent may be inferred." /d. Intent may be implied from the defendant's conduct and/or the surrounding circumstances. See /d.; PeoPle v. Collins. 178 AD2d 789. 578 NYS2d 273 <3d Deot. 1991 l. Whether in fact the defendant's conduct, as described in the accusatory instrument, rises to the level of an intentional causing of public inconvenience by virtue of having obstructed pedestrian traffic is an issue for trial and cannot be appropriately determined within the context of a facial sufficiency motion. See People v. Cohen, supra; People v. James. 7 Mise 3d 363.793 NYS2d 871 CN.Y.Citv Crim. Ct. 2005). In deciding a motion to dismiss, the Court is mindful that the standard for pleading a prima facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial. People v. Henderson. suora. In addition, in assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. PeoPle v. Gibble. 2 Mise 3d 510. 773 NYS2d 499 . Accordingly, defendant's motion to dismiss the information pursuant to C.P.L. §170.30(1)(a) is denied. Motion to Dismiss the Charges on Speedy Trial Grounds Although the defendant requests a dismissal of the charges on speedy trial grounds, the affirmations in support of the motion to dismiss are devoid of supporting facts or legal arguments on this issue. The People announced their readiness for trial on January 22, 2007, well within the ninety-day requirement of C.P.L. §30.30(1)(b). In addition, defendant has failed to establish that her defense has been impaired as the result of any delay In the proceedings. Accordingly, the motion to dismiss on speedy grounds is denied. Motion to Dismiss the Charges in the Interests of Justice Defendant has failed to show "the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." C.P.L. §170.40(1). Accordingly, defendant's motion to dismiss the charges in the interests of justice pursuant to C.P.L. §170.40 is denied. Motion for Discovery Defendant's motion for discovery is granted to the extent that the People are directed to provide defendant with copies of the videotapes of the arrest, including those that depict the defendant while she remained at the Ossining Village Police facility after the arrest. Copies of the videotapes are to be provided to defendant's counsel prior to the date of the suppression hearings. giving sufficient time for preparation. The People have complied with defendant's discovery demands in all other respects. The People acknowledge their ongoing duty to disclose exculpatory material under Bradv v. MarvJand. 373 U.S. 83. 83 S.Ct. 1194 C1963l and People v. Fein. 18 NY2d 162. 272 NYS2d 753 C1966l. Motion to Suppress Physical Evidence and Statements, or Alternatively for Mapp and Huntley, Hearings Defendant's motion for Mapp and Huntley hearings is granted. Defendant's motion to suppress statements and physical evidence is reserved pending the hearings. Motions to Preclude Cross-Examination of Defendant as to Prior Bad Acts, Arrests or Convictions, and to Preclude People from Introducing Such Evidence in their Direct Case Defendant's motion to preclude cross-examination of defendant as to her prior criminal history or bad acts is reserved pending a Sandoval hearing. Defendant's motion to preclude the People from introducing evidence of defendant's prior bad acts in their direct case is denied as being premature. In the event the People seek to introduce such evidence, they must inform the defendant and request a hearing before doing so. Motion to Reserve Rights to Renew Motions Defendanrs motion to reserve her rights to renew all motions is granted to the extent permissible under C.P.L. §255.20(3). This matter is adjourned to August 13, 2007 at 4:00 p.m. for the Mapp and Huntley hearings. The Sandoval hearing will be scheduled prior to trial. The foregoing constitutes the Decision and Order of the Court. Save trees - read court opinions online on Google Scholar.