138 Misc. 2d 286 | Long Beach City Court | 1988
OPINION OF THE COURT
Defendant was charged on May 6, 1987 by three simplified traffic informations with aggravated unlicensed operation of a motor vehicle in the second degree in violation of section 511 (2) (a) of the Vehicle and Traffic Law, unregistered motor vehicle in violation of section 401 (1) (a) of the Vehicle and Traffic Law, and improper plates in violation of section 402 (4) of the Vehicle and Traffic Law. He was arraigned on October 21, 1987, at which time he appeared with his attorney and entered pleas of not guilty to all charges. Defendant’s attorney
The motion to dismiss was received by the court on November 30, 1987 and was returnable on December 11, 1987, clearly more than 30 days from the date of the demand for the serving and filing of the supporting depositions. CPL 100.25 gives a defendant charged under a simplified traffic information an absolute right to have a supporting deposition filed with the court and served upon him or his attorney when demanded before trial and within 30 days after a plea of not guilty to the charge is entered. Such a supporting deposition must be filed and served within 30 days after the demand is received by the court, or at least 5 days before trial, whichever is earlier. Failure to comply with the supporting deposition demand provisions of CPL 100.25 renders the simplified traffic information "insufficient on its face.”
There can be no question but that the simplified traffic informations in the case at bar are insufficient on their faces. The demands for supporting depositions were timely made and no supporting depositions were served or filed within 30 days thereafter.
The only question to be determined is whether the People’s motion to file a superseding information pursuant to CPL 100.50 obviates their failure to supply the supporting deposition in accordance with CPL 100.25.
CPL 100.50 states that a superseding information may be substituted for an information, prosecutor’s information or misdemeanor complaint. The comparison of the section setting forth the definition and requirements of a simplified traffic information (see, CPL 1.20 [5b]; 100.10 [2a]; 100.25) with those of an information (CPL 1.20 [4]; 100.10 [1]; 100.15) reveal that the two accusatory instruments are separate and unrelated entities and that a simplified traffic information is not an information of a lower category. Indeed it appears that the
It is clear that the People have failed to serve and file the supporting deposition in accordance with CPL 100.25 and that where a defendant receives a simplified traffic information and makes a timely request for a supporting deposition, he is entitled to the supporting deposition in accordance with the provisions of the statute and the failure to provide the same mandates dismissal. (People v De Feo, 77 Misc 2d 523.) The People’s motion to now file a supporting deposition is denied. The People’s motion to file a superseding information in accordance with the provisions of CPL 100.50 must be denied as well.
The defendant’s motion to dismiss the simplified traffic informations is granted.