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Entitlement to an Information

February 13, 2008

As we've seen over the past four issues, Vehicle and Traffic Law '1193(3)(E)(7) initially requires the arraigning court to decide whether the "accusatory instrument conforms to the requirements of section 100.40 of the criminal procedure law."  CPL '100.40, of course, sets forth the requirements for informations, misdemeanor complaints and simplified traffic informations.  The problem however, is that no uniform standard of review is provided.  The standard to be applied in determining the sufficiency of an accusatory instrument varies depending upon the instrument involved.  If the instrument with which the defendant is charged is an information, it must substantially conform to the requirements prescribed in CPL '100.15, the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, must provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information and, most crucially, non‑hearsay allegations of the factual part of the information and/or of any supporting depositions must establish, if true, every element of the offense charged and the defendant's commission thereof.


If the accusatory instrument, on the other hand, is a misdemeanor complaint, it must likewise substantially conform to the requirements prescribed in section 100.15 and the allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, must provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument.

By now it should be apparent that the crucial distinction between the misdemeanor complaint and an information is the requirement that the information set forth in non-hearsay fashion, every element of the offense charged and the defendant's commission thereof.  This difference can have critical ramifications in terms of how the motorist's blood alcohol content is set out.


The ubiquitous traffic ticket or as its known, the simplified traffic information, lives by its own set of rules.  This adroit little fellow, on the other hand, need only conform to Vehicle and Traffic Law '100.25 that incorporates the commissioner's regulations.  However, when the filing of a supporting deposition is ordered by the court (CPL 100.25[2]), the failure to file the supporting deposition within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face.  When one flips back to CPL '100.25 he or she will find that when requested, the standard for review to be applied to a simplified traffic information that has been supplemented with a supporting deposition is reasonable cause.  In terms of sufficiency CPL '100.25 provides that: "A defendant arraigned upon a simplified information is, * * * entitled as a matter of right to have filed with the court and served upon him, or * * * his attorney, a supporting deposition of the complainant police officer or public servant, containing 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."  Thus when the defendant has been charged by means of a simplified traffic information and requests a supporting deposition, the standard to be applied in reviewing these two documents will be nearly identical to that applied to the misdemeanor complaint, reasonable cause.

When viewed in light of Vehicle and Traffic Law '1193(2)(E)(7), therefore, the threshold examination to be undertaken by the court will either be to decide whether the accusatory instrument sets forth every element of Vehicle and Traffic Law '1192(2) in non-hearsay fashion (an information) or whether it establishes reasonable cause that the offense occurred (misdemeanor complaint).


Somewhat ironic is that the seemingly basic device, the simplified traffic information, is far more problematic.  If we merely scratch the surface of the governing CPL provisions two scenarios present themselves.  First, a bare UTT is offered at arraignment.  In such a situation the standard would seemingly be that set out by the first portion of CPL '100.25 which finds the instrument sufficient upon compliance with the commissioners regulations.  If, however, the motorist-turned-defendant is merely provided with a bare UTT and requests a supporting deposition, he or she is entitled as a matter of right to have that instrument filed.  In the pre-suspension pending prosecution world everything went on hold as the motorist waited with bated breath to see if the arresting officer complied with the Court's Order.  If, by the time this issue is read, Vehicle and Traffic Law '1193(2)(E)(7) has not yet been declared unconstitutional, it seems that when a request is made by the motorist for a supporting deposition, the simplified information will no longer be a sufficient basis upon which to suspend the license, at least until a supporting deposition is filed.  Note the language of the governing statute: "A defendant arraigned upon a simplified information is, * * * entitled as a matter of right to have filed with the court and served * * * a supporting deposition of the complainant police officer * * *."  While one may turn to the phrase "a defendant arraigned upon a simplified information" to support the proposition that the suspension may immediately issue, this argument entirely misses the point.  CPL '100.40(2) governs the sufficiency of a simplified traffic information.  The clear import of that section is that the sufficiency of the "ticket" cannot be determined until the filing of the supporting deposition.  It therefore seems clear that if such a request is made the court must adjourn the arraignment for a sufficient period to permit service of the supporting deposition.

So much for that.  But is a supporting deposition all the defendant is entitled to?  May he or she insist upon an information?


In issue 2 we said yes.  Shortly after that we gave a series of lectures for the State Bar and asserted the same proposition.  Without question, no single item upon which  we have spoken or carried in the Bulletin has sparked such intense interest.  While most agree with our position, all do not.  Shortly after issue 2 ran, we received a brief letter demanding that we retract that position.  While we refused, we offered the writer, a nonsubscribing assistant district attorney, the opportunity to run an unedited contrary view.  Unfortunately, nothing further was ever heard.

In today's Bulletin we reaffirm that position and discuss a recent case in which the matter has been reviewed.

Entitlement to an Information finds its origin in CPL '170.65(1).  This section provides that "[a] defendant against whom a misdemeanor complaint is pending, is not required to enter a plea thereto.  For purposes of prosecution, such instrument must, except as provided in subdivision three, be replaced by an information, and the defendant must be arraigned thereon.  If the misdemeanor complaint is supplemented by a supporting deposition and such instruments taken together satisfy the requirements for a valid Information, such a misdemeanor complaint is deemed to have been converted to and to constitute a replacing Information."

So far so good, but CPL '170.65(1) speaks to a prosecution commenced by a misdemeanor complaint.  Of what importance can it be when the defendant is charged by means of a simplified traffic information?


The answer, in part, lies in  CPL '100.10(2)(a).  This provision decrees that "[a simplified traffic information] . . . serves as a basis for commencement of a criminal action, for [misdemeanors relating to traffic], alternative to the charging thereof by a regular Information, and under circumstances prescribed in '100.20(5), it may serve, either in whole or in part, as a basis for prosecution of such charges."  A close reading of CPL '100.20(5) and CPL '100.10(2)(a), proves that the simplified traffic information was never intended to be the exclusive means of charging a misdemeanor relating to traffic.  As a legislative enactment, this provision must be "construed according to its natural and most obvious sense, without resorting to an artificial or forced construction" (97 NYJur2d '108, see also, People v Shafer, (1968, 4th Dept) 30 AD2d 213, 291 NYS2d 221).  In drafting CPL '100.20(5), particularly the last clause, the legislature clearly chose to use the permissive "may serve" as opposed to the mandatory shall serve.  Likewise a fair reading of the last portion of the same clause compels a similar conclusion since the legislature used the term "as a basis" and not "as the basis."

Moreover, statutory provisions, if possible, must be interpreted in a way that bespeaks of constitutionality (People v Dietze, (1989) 75 NY2d 47, 550 NYS2d 595; People v Barber 289 NY 378, 46 NE2d 329).  Any interpretation of the foregoing which says that the legislature intended the simplified traffic information and supporting deposition to be the exclusive means of prosecuting misdemeanors relating to traffic raises serious Equal Protection problems as it would serve to deny those charged with a particular class of crime the right to non-hearsay allegations without any rational basis for such classification.


The question, of course surrounds conversion.  How does a defendant charged with a misdemeanor relating to traffic lay claim to CPL '170.65 and the right to be prosecuted by information?

This answer lies in the fact that while the instrument which is given to the motorist is a true appearance ticket, the portion that is filed with the court is a misdemeanor complaint in every sense of the word.  When charging a misdemeanor, the instrument that is filed with the Court is verified or affirmed in the manner described by 15 NYCRR '91.7(b).  While the CPL does not require that a simplified traffic information contain both a factual and accusatory part, such is required by the Commissioner's regulations that are incorporated in the statutory definition by virtue of CPL '100.10(2)(a).  15 NYCRR 91.7 requires inclusion of the section charged, the location, date and description of the offense and a statement as to whether the offenses charged is a misdemeanor or traffic violation.  Since, when reasonably construed, the instrument forms a misdemeanor complaint, CPL '170.65 is triggered and absent a valid waiver, the motorist is entitled to the filing of an information that contains non-hearsay allegations.

While it can be contended that the motorist's copy of the ticket is not verified, this contention will not act to circumvent the motorist's claim to conversion.  The portion of the ticket packet that is given to the defendant is an appearance ticket.  As such it is not an accusatory instrument at all (see CPL '1.20[1-8, 17]).


Frequently a form Supporting Deposition/Bill of Particulars completed by the arresting officer will be filed at the same time as the simplified traffic information.  Will the filing of this document change the preceding analysis?  No, if anything it strengthens the defendant's claim to an information.  A little realized fact is that the CPL contains two distinctly different provisions relating to supporting depositions.  CPL '100.20 provides that "a supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument * * *."  CPL '100.25(2) sets forth that "[a] defendant arraigned upon a simplified information is, upon a timely request, entitled as a matter of right to have * * * a supporting deposition of the complainant police officer or public servant, containing 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."

Therefore, since the concurrently filed "supporting deposition" is verified by the arresting officer it cannot be a "supporting deposition" within the meaning of CPL '100.20.  Since a '100.25(2) supporting deposition of the complainant police officer or public servant requires a request by the defendant and an order of the court, in the absence of either, such a "gratuitous" filing cannot be deemed to be a "supporting deposition" within the meaning of CPL '100.25(2).


What then is the document?  Labels, of course, are not dispositive and in such an instance the document, particularly the popular carbonized form, will meet every requirement of a misdemeanor complaint.  Could it, as labeled, be a Bill of Particulars?  Maybe, but look what that does.  Pursuant to CPL '100.45, "the provisions of section 200.95, governing bills of particulars with respect to indictments, apply to informations, to misdemeanor complaints and to prosecutor's informations."  Thus if the document really is a Bill of Particulars it can only be filed if the underlying document is an information, misdemeanor complaint or a prosecutor's information."


Not to be overlooked, of course, is People v Alejandro (1987) 70 NY2d 133, 517 NYS2d 927.  In Alejandro the Court of Appeals expressed an unquestioned preference for the use of non-hearsay allegations, hence, informations in criminal proceedings.  Of interest in Alejandro is the following observation: "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."  The Court's reference in Alejandro, on two occasions, to "petty offenses" is strong medicine for maintaining that a motorist who is charged with a misdemeanor relating to traffic is entitled to an information.  CPL '1.20(39) defines a "petty offense" as "a violation or a traffic infraction."  Traffic infractions do not include misdemeanors (Vehicle and traffic Law '155).  Alejandro, by including "petty offenses" within the ambit of those offenses to which the defendant is entitled to an information, says that a motorist charged with Driving While Ability Impaired (a violation) is entitled to an information whereas one charged with Driving While intoxicated (a misdemeanor) is not.  Such of course, would be absurd and ignores the Court's unqualified reference to misdemeanors.

There remains that quiescent mouse, Vehicle and Traffic Law '155.  For the uninitiated, this section provides that "such violations shall be deemed misdemeanors and all provisions of law relating to misdemeanors except as provided in section eighteen hundred five of this chapter and except as herein otherwise expressly provided shall apply except that no jury trial shall be allowed for traffic infractions."  It seems that if this section stands for any purpose at all, it will bar the argument that misdemeanors related to traffic are somehow to be afforded disparate treatment from that governing misdemeanors generally.

Recently, Judge Gary Wm. Rood of the Perinton (Monroe County) Town Court addressed the entitlement of two defendants who had been charged with alcohol related operating offenses to an information.  In People v Smith, the defendant was charged with various traffic violations as well as violating Vehicle and Traffic Law '1192(3).  In People v Richardson the defendant was also charged with Driving While Intoxicated Per Se Vehicle and Traffic Law '1192(2).


While numerous issues were presented in this October 3, 1994 decision, of paramount interest was that aspect of the case dealing with each defendant's right to non-hearsay allegations through the vehicle of an information.  Both defendants (the cases were temporarily joined for the motions and will hereinafter be referred to as Smith) took an interesting tack.  Neither sought entitlement by means of conversion, instead seeking dismissal upon the ground they were entitled to the same protection as defendants charged by information.  They contended that if this "prima facie case" requirement is not met, then the simplified traffic informations should be dismissed as jurisdictionally defective in accordance with the Court of Appeals' ruling in People v. Alejandro (supra).  The People, on the other hand, argued that the "non-hearsay" sufficiency requirements of CPL '100.40[1][c] were not applicable and, therefore, Alejandro had no bearing.  The People further argued that the factual allegations are not even required to be of an evidentiary character because CPL '100.20, is not applicable to supporting depositions provided pursuant to CPL '100.25[2].  Reducing it to its barest essentials, the People contended that Alejandro, when read with People v. Hohmeyer (1987) 70 NY2d 41, 517 NYS2d 448, created two classes of criminal defendants charged with misdemeanors; those charged with misdemeanors under the Penal Law and those charged with traffic related misdemeanors.


Rejecting the People's position, the court commenced by recognizing that in People v. Hohmeyer "the Court of Appeals, in sustaining the use of a checkoff form of supporting deposition, ruled that a supporting deposition by a complainant police officer must contain both 'factual allegations of an evidentiary character * * * which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein', as required by CPL '100.20, and 'allegations of fact * * * providing reasonable cause to believe the defendant committed the offense or offenses charged', as required by CPL '100.25[2]."  Thus Hohmeyer, observed the court in Smith, held that the sufficiency requirement for a simplified traffic information augmented by a supporting deposition is "virtually identical" to the . . . sufficiency requirements for a misdemeanor complaint." (People v Smith, citing People v. Hohmeyer, at p. 43).

Further, the Smith court noted that "a defendant charged with a traffic related misdemeanor by a simplified traffic information supplemented by a supporting deposition, whether pursuant to timely demand or voluntarily provided, would be in a much less protected position than a defendant charged with the exact same traffic related misdemeanor by an information."

Likewise, noted Judge Rood, a similar disparity would occur where "one defendant is charged with a traffic related misdemeanor by simplified traffic information supplemented by a supporting deposition and another defendant is charged with the same offense by a misdemeanor complaint, even though the pleading sufficiency requirements for the supporting deposition to the simplified traffic information are virtually identical those for the misdemeanor complaint."


Confronting the People's contention that Hohmeyer and not Alejandro applied, the Smith court found that "[i]t 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 (supra), decided June 9, 1987, and Alejandro (supra), 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 holding of the Smith court was explicit: "[i]n the absence of a decision by the Court of Appeals or another court binding upon this court, this court believes that the equal protection clauses of both the United States and New York State Constitutions (US Const, 14th Amend, '1; NY Const, Art I, '11) require that any defendant charged with a misdemeanor under the laws of the State of New York is, in the absence of a waiver thereof, entitled to have the factual allegations of the accusatory instrument which is the basis for the prosecution of the criminal action and/or those of any supporting depositions, both provide reasonable cause to believe the defendant committed the offense charged and establish a prima facie case against the defendant.  Accordingly, this court holds that where a defendant is charged by a simplified information with one or more misdemeanor offenses and the defendant timely requests a supporting deposition, or one is voluntarily provided by the People before the defendant's time to request one has expired, the factual allegations of the supporting deposition or depositions must provide reasonable cause to believe the defendant committed the offense or offenses charged and the supporting deposition or depositions must contain non‑hearsay allegations of fact which establish, if true, a prima facie case against the defendant or the simplified information must be dismissed as jurisdictionally defective.



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