People v. SmithPeople v. Smith
OPINION OF THE COURT
Both of the above defendants are represented by the same defense counsel. Each defendant is charged with various violations of the Vehicle and Traffic Law, including common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). With the consent of the parties, the court has temporarily joined these cases for the purpose of considering and deciding the defendants’ respective motions to dismiss because of the similar questions of law involved.
Defendant Smith is charged with common-law driving while intoxicated and several traffic infractions by several simplified traffic informations. A single checkoff-form supporting deposition by the arresting officer was voluntarily supplied and filed with the simplified traffic informations. Defendant Richardson is charged with both common-law driving while intoxicated and driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) by two separate simplified traffic informations and a traffic infraction by a third simplified traffic information. Both a checkoff-form supporting deposition by the arresting
Defendant Smith seeks to have the simplified traffic information charging him with common-law driving while intoxicated dismissed upon the ground that the accusatory instrument, here a simplified traffic information supplemented by a supporting deposition, is jurisdictionally defective because it does not meet the sufficiency requirements specified by the Court of Appeals in People v Alejandro (
i.
APPLICATION OF PEOPLE v ALEJANDRO (
TO SIMPLIFIED TRAFFIC INFORMATIONS CHARGING VIOLATIONS OF VEHICLE AND TRAFFIC LAW § 1192 (2) AND (3)
The defendants argue that because they are charged with driving while intoxicated, an unclassified misdemeanor (see, Vehicle and Traffic Law § 1193 [1] [b]), each of them is entitled to the same protection as a defendant charged by information, that being that the nonhearsay allegations of the accusatory instrument and/or any supporting depositions must establish, if true, every element of the offense charged and the defendant’s commission thereof (see,
The People argue that because these defendants have been charged by simplified traffic informations, the pleading sufficiency requirements of
Central to the issue of whether the rulings of Alejandro (supra) should be followed in the cases at bar is not whether a defendant charged with a traffic related misdemeanor is to be treated differently than a defendant charged with misdemeanor under the Penal Law, but, rather, whether a defendant charged with a traffic related misdemeanor by a simplified traffic information should be treated differently and protected less than a defendant charged with the same misdemeanor by an information.
An information is a verified written accusation by a person charging one or more other persons with one or more offenses, none of which is a felony, and can serve as a basis for both commencing and prosecuting the criminal action (
As previously cited by this court (see, People v Alessi,
In his concurring opinion in Alejandro (supra), Judge Bellacosa stated:
"I concur in the result and in the reasoning of the [majority] opinion by Judge Hancock. I am also of the view that this result is a small price to pay for upholding the logic of the statutory framework. It supplies elemental fairness to defendants prosecuted for less serious crimes, but crimes nevertheless, which affect ordinary people and produce lifetime criminal records.
"In coming to this conclusion, I am not unmindful either of the practicalities encountered in prosecuting the relatively greater numbers of these relatively less serious crimes. Rather, that is all the more reason for caution and special protections so that such prosecutions do not become routinized or treated by anyone as insignificant or unimportant.” (People v Alejandro, supra, at 140.)
Any alleged violation of the Vehicle and Traffic Law, whether a misdemeanor or a mere traffic infraction, may be charged by an information instead of a simplified traffic information (
A misdemeanor complaint, like an information, is a verified written accusation by a person charging one or more other persons with one or more offenses, none of which is a felony. Unlike an information, at least one of the offenses charged by the misdemeanor complaint must be a misdemeanor. While the misdemeanor complaint can serve as a basis for commencing the criminal action, it cannot serve as a basis for prosecuting the criminal action unless the defendant waives prosecution by information and consents to be prosecuted upon the misdemeanor complaint (
A defendant charged by a misdemeanor complaint is not required to enter a plea thereto and if he or she does not waive prosecution by information, it must be replaced by an information (
So long as at least one charge is a misdemeanor, one or more alleged violations of the Vehicle and Traffic Law may be charged by a misdemeanor complaint rather than by simplified traffic information. If either defendant had been charged by a misdemeanor complaint, as could have been done here because each was charged with at least one misdemeanor count of driving while intoxicated, then the defendant so charged could have required that the misdemeanor complaint be replaced and superseded by an information and the People would have had to establish, by nonhearsay factual allegations, a prima facie case for all of the offenses charged by the superseding information.
As observed by the Court of Appeals, "[t]he simplified information is a statutory creature designed to provide an uncomplicated form for handling the large volume of traffic infractions and petty offenses for which it is principally used” (People v Nuccio,
In both criminal actions before the court, supporting depositions were voluntarily supplied and filed with the simplified traffic informations. Where a supporting deposition is voluntarily supplied within the time during which a defendant, pursuant to
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
If the court’s analysis was to end here and the court was to hold that a supporting deposition supplementing a simplified traffic information need only meet the pleading sufficiency requirements spelled out in Hohmeyer (supra), then clearly a defendant charged with a traffic related misdemeanor by a simplified traffic information supplemented by a supporting deposition would be in a much less protected position than a defendant charged with the exact same traffic related misdemeanor by an information. Even though the defendant charged by a simplified traffic information is charged with the same offense and subject to the same penalties and possibility of a permanent criminal record as the defendant charged by an information and the considerations for requiring the establishment of a prima facie case are equally applicable to either situations (see, above quoted text from Commn Staff Notes, op. cit.; People v Alejandro, supra [Bellacosa, J., concurring]), the
This disparity in the treatment would also occur when 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. While in neither situation would the People have to, as a matter of pleading, establish a prima facie case by nonhearsay allegations of fact, the defendant charged by the misdemeanor complaint could refuse to enter a plea thereto and demand that it be replaced by an information, which must establish a prima facie case or be subject to dismissal as jurisdictionally defective. Again, two defendants charged with the exact same offense, but by different types of accusatory instruments, would not be equally protected by the law.
It defies logic, as well as the concepts of fairness and equal protection, for the Court of Appeals to have intended, as the People contend, that its decisions in Hohmeyer (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 People’s position is all the more tenuous when one considers that, as pointed out above, a defendant charged with a trafile related misdemeanor could be charged by either an information or a misdemeanor complaint and, thereby, undisputedly be entitled to all of the same pleading protection given to a defendant charged with an offense under the Penal Law. To sustain the People’s position would require this court to hold that there are two classes of defendants charged with traffic related misdemeanors: those charged by simplified traffic information and those charged by information or misdemeanor complaint. Such a holding cannot be supported by logic or reason. Further, this court does not read Hohmeyer to preclude the application of the principles of Alejandro to a case where the defendant is charged with a misdemeanor by a simplified traffic information. Rather, this court’s reading of Hohmeyer is that the issue of whether the People must plead
This court believes that the Equal Protection Clauses of both the United States and New York State Constitutions (US Const, 14th Amend, § 1;
II.
REQUIREMENT OF "NONHEARSAY” ALLEGATIONS OF FACT
Applying the above rulings to the facts of the cases before the court, the supporting depositions voluntarily supplied by the People to supplement the simplified traffic informations charging driving while intoxicated must contain nonhearsay allegations of facts which establish, if true, every element of the offense charged and the particular defendant’s commission thereof. The People argue, in effect, that such "nonhearsay allegations of fact” should include hearsay which would be admissible at trial. The court has reviewed several local criminal court decisions which, to some extent, support this position (see, People v Fields,
Based upon those decisions reviewed and the reasons given by the courts rendering those decisions, this court rules that the nonhearsay allegations of fact required for the facial sufficiency of an information may include hearsay which would be admissible at trial, so-called "admissible hearsay”, but with one proviso: the basis for the admissibility of the hearsay must be supported by nonhearsay allegations of fact contained in the information and/or any supporting depositions or, in the case of a document sought to be used under the business records exception of
III.
SUFFICIENCY OF ACCUSATORY INSTRUMENTS CHARGING DEFENDANTS WITH DRIVING WHILE INTOXICATED
The court must now determine whether the accusatory instruments charging the defendants with driving while intoxicated are legally sufficient in accordance with the above rulings.
Defendant Smith, charged only with common-law driving while intoxicated, contends that the supporting deposition filed in his case is defective because it fails to specifically allege that he was intoxicated. Defendant Richardson, charged with both common-law driving while intoxicated and driving while intoxicated per se, contends that while the supporting depositions filed in his case may be sufficient for the driving while intoxicated per se charge, they are still defective with regard to the common-law driving while intoxicated charge due to the absence of a specific allegation that he was intoxicated.
Neither of the supporting depositions filed in defendant Richardson’s case specifically allege that he was intoxicated but the checkoff-form supporting deposition of the arresting officer alleges that the arresting officer observed the administration of the breathalyzer test by another deputy, the defen
In People v Darnley (Just Ct, Monroe County 1993, Olver, J.), the court held, in dicta, that the rationale of Alejandro (supra) precluded any other conclusion but that a supporting deposition supplementing a simplified traffic information charging a violation of Vehicle and Traffic Law § 1192 (3), in order to be sufficient, must contain a specific allegation that the defendant was intoxicated, even when it sets forth allegations describing observations of the defendant’s physical condition and his performance of certain field sobriety tests.
Under Vehicle and Traffic Law § 1192 (9), a driver charged with a violation of either Vehicle and Traffic Law § 1192 (2) or (3) may be convicted of a violation of Vehicle and Traffic Law § 1192 (1) (driving while ability impaired by the consumption of alcohol), (2) or (3), whether the conviction is based upon a verdict after trial or a guilty plea. Therefore, a defendant charged with a violation of Vehicle and Traffic Law § 1192 (2) by an accusatory instrument legally sufficient to serve as a basis for prosecution could be convicted of a violation of Vehicle and Traffic Law § 1192 (3).
Accordingly, this court holds that when a defendant is charged with a violation of Vehicle and Traffic Law § 1192 (3) by a simplified traffic information supplemented by one or more supporting depositions, a supporting deposition must contain a nonhearsay allegation that the defendant was intoxicated unless one or more supporting depositions contain sufficient nonhearsay allegations that the defendant was operating a motor vehicle in an erratic or unlawful manner and that the results of a chemical test properly administered to the defendant pursuant to Vehicle and Traffic Law § 1194 showed the defendant to have a BAG of .10% or more. When a supporting deposition supplementing a simplified traffic information (or, for that matter, when a regular information) is legally sufficient to charge a violation of Vehicle and Traffic Law § 1192 (2) and also contains nonhearsay allegations of erratic or unlawful operation by the defendant, such combination of facts is sufficient to establish that the defendant was intoxicated while operating a motor vehicle, which is all that
Therefore, because the supporting deposition filed in defendant Smith’s case does not allege he was intoxicated and contains no allegation regarding a chemical test administered to him, the simplified traffic information charging defendant Smith with a violation of Vehicle and Traffic Law § 1192 (3) must be dismissed, without prejudice to the timely filing of a new legally sufficient accusatory instrument, and it is so ordered. The same is not true in the case of defendant Richardson unless factual allegations of the supporting depositions filed in his case are not legally sufficient to charge a violation of Vehicle and Traffic Law § 1192 (2). Even though defendant Richardson has not challenged the sufficiency of the supporting depositions with regard to that charge, the court’s last made ruling nevertheless requires resolution of that issue in order to determine if the Vehicle and Traffic Law § 1192 (3) charge against defendant Richardson should be dismissed.
In Darnley (supra), the court, also in dicta, held that the allegations concerning the breathalyzer test administered to the defendant in that case had to be nonhearsay, stating: "[I]t would certainly seem to be the preferred practice for there to be a supporting deposition from the breath test operator or, at the least, sufficient allegations in a Supporting Deposition to demonstrate the non-hearsay basis for any allegation as to test results.” (People v Darnley, supra, at 4-5.)
This court concurs with Darnley (supra) to the extent it holds, in effect, that the factual allegations concerning the chemical test required to charge a violation of Vehicle and Traffic Law § 1192 (2) must be nonhearsay, that the nonhearsay character of said allegations must be apparent on the face of the instrument and that the preferred practice would be a supporting deposition from the person administering the test. However, this court does not agree that an arresting officer who personally observes the administration and results of a breathalyzer test is in the same position as the breathalyzer operator nor that arresting officer’s mere observations of the test and its results, be it a breathalyzer test or some other chemical test, without more, is sufficient.
People v Connaughton (NYLJ, Oct. 23, 1992, at 26, col 2 [Grim Ct, Queens County]) is helpful. In Connaughton, the court held that to properly charge a defendant with violating Vehicle and Traffic Law § 1192 (2), the information "must
The court finds the rationale of Connaughton (supra) compelling and holds the allegations of fact required for a sufficient supporting deposition supplementing a simplified traffic information (or for a sufficient information), even when clearly not hearsay, must be otherwise admissible in order to establish a prima facie case.
In defendant Richardson’s case, the arresting officer’s testimony regarding his observations of the administration and results of the breathalyzer test would not be admissible until a proper foundation was laid. Neither supporting deposition alleges facts sufficient to show the arresting officer’s observation of the test result would be admissible. Therefore, the arresting officer’s statements regarding his observations of the administration and results of the breathalyzer, even if true and not hearsay, are not admissible and, therefore, do not establish that defendant Richardson had .10% or more BAG as shown by a chemical test made pursuant to Vehicle and Traffic Law § 1194.
As the supporting depositions in the action against defendant Richardson are not sufficient to charge a violation of Vehicle and Traffic Law § 1192 (2), then, in accordance with this court’s holding above, the Vehicle and Traffic Law § 1192 (3) charge against him must be dismissed, but, as in the case of defendant Smith, without prejudice to the timely filing of a new legally sufficient accusatory instrument, and it is so ordered. While defendant Richardson has not moved to dismiss the Vehicle and Traffic Law § 1192 (2) charge against him, nevertheless, because under Alejandro (supra), the lack of a legally sufficient accusatory instrument would be a juris
[Portions of opinion omitted for purposes of publication.]