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People served a response to the request


The Defendant stands accused, by long form information, of criminal possession of a controlled substance on account of an incident. That charge is designated as count 1. She also stands accused by seven simplified traffic information, each specifying an appearance date of June 29, 2005 and each joined together with the long form information under this docket, of DWI, reckless driving, driving above the posted speed limit, failing to maintain her driving lane, failure to yield to an emergency vehicle, passing a red light, and driving without her headlights illuminated. These incidents are alleged to have occurred at the same time and place, and on the same date, as the alleged Penal Law violation. A D.W.I. supporting deposition and bill of particulars pertaining to the alleged violation of Vehicle and Traffic Law is annexed to the accusatory documents. The Defendant was arraigned on all counts.

The criminal court file does not bear the highlighted notation that, as a general rule, is made by the clerk when a defendant, either at arraignment or thereafter by mail, serves a demand for a supporting deposition. In the court file, however, is a request for a bill of particulars, behind which is stapled a demand for supporting depositions, behind which is stapled, in turn, the envelope, addressed to Clerk, District Court, in which both documents arrived at the court clerk’s office. It is apparent that the two documents, although sent in the same envelope, were stapled together after their arrival in the clerk’s office, but no cover letter notifying the clerk of the action requested accompanies either of these documents. Each bears the endorsement of the Defendant’s attorney of record, and each is noticed, first, to the District Attorney and second, to the Clerk, District Court. Each document is dated July 28, 2005, but only the first page of the requests for a bill of particulars bears the court clerk’s time-date stamp. Although not completely legible, the time-date stamp appears to read August 1, 2005, 3:05 p.m. The four-page request for a bill of particulars calls for production of records of analysis of any chemical test administered to the Defendant, specified information about the person who conducted any such test, specified information about any person who interpreted the test to determine the Defendant’s blood alcohol content, specified information about the chemicals used during the test, specified information about the machine used to conduct that test, schematic diagrams of any such machine, and other specified information about the conduct of the test. The demand for supporting depositions bears the summons numbers of the simplified traffic information other than that by which the Criminal Defendant is charged with violating Vehicle and Traffic Law. The court has not ordered that the complainant police officer serve and file supporting depositions. Moreover, the People did not timely respond to the Defendant’s request for a bill of particulars.

The Defendant moves for the relief noted above. In support, she annexes a copy of the affidavit attesting to service by mail of the demand for supporting depositions and the request for a bill of particulars on the District Attorney, and on the clerk of the court. Insofar as she seeks dismissal of counts 3 through 8, she points to the failure of the People to supply supporting depositions, and urges that as a result of the District Attorney’s failure to supply the supporting depositions, the six traffic tickets must be dismissed. Insofar as she seeks an order compelling compliance with the request for bill of particulars, the Criminal Defendant posits that she needs a response in order to prepare for trial, and points out that the People have not refused to comply.

During the pendency of the motion, the People served a response to the request for a bill of particulars. Like the Defendant, they appear to regard a bill of particulars as device for clarifying the pleadings as if it were a discovery device. In opposition to the motion, they assert they are not responsible for filing a supporting deposition but make no argument concerning continued prosecution by simplified traffic information on account of the apparent failure of the court clerk to appreciate the existence of the demand for supporting depositions, the ensuing failure of the court to order that the complainant police officer serve and file supporting depositions, and the inevitable failure on the part of the complainant police officer to comply. Insofar as the People served a response to the request Criminal Defendant seeks an order compelling compliance with her request for a bill of particulars, they urge, in effect, that the application should be denied as moot because they have now responded.

In reply, the Defendant tacitly objects to the People’s response to her request for a bill of particulars. She does so by asserting that she remains in need of responses to each of the items she demanded.

Simplified information is a peculiar form of accusatory instrument that is authorized in limited, statutorily specified cases as an alternative to prosecution by long form information. 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. But, when a criminal 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, such as a verified statement containing factual allegations augmenting the statements of the accusatory instrument and which support or tend to support the charge. The request for supporting depositions is made, not of the People, but of the court, and, upon a timely request, the court must order the complainant police officer to 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. Failure to timely serve the supporting depositions renders the simplified traffic information for which they were demanded defective and, indeed, divests the court of jurisdiction to proceed with the prosecution by the simplified accusatory documents. And because what is at issue is a defendant’s absolute right to timely receive the factual detail provided by timely demanded supporting depositions, court errors in directing that supporting depositions be supplied do not undo that loss of jurisdiction.

It is true that the Criminal Defendant, apparently ignorant of the requirement that the request for supporting depositions be made to the court, did nothing to highlight to the clerk, who opened the envelope in which the then-separate request for a bill of particulars and the demand for supporting depositions arrived, that action by the court was required. It is also true that a defendant who even inadvertently engages is misdirection can be estopped from complaining that a supporting deposition was improperly served. But, even though it appears that she sent the documents to the clerk for mere filing, there is no indication that the Defendant consciously hid the then-separate demand for supporting depositions behind the request for a bill of particulars to which it is now stapled so as to mislead and deceive the clerk. And since the demand is in writing, since it prominently recites the section of the criminal procedure law pursuant to which it was made, and since it was mailed within 30 days of the date the Defendant was first directed to appear in this court, the request for supporting depositions is timely and properly made. The failure to order supporting depositions and the inevitable failure of the complainant police officer to serve them thus render the six simplified traffic information for which the Criminal Defendant requested supporting depositions fatally defective, requiring their dismissal. The second branch of Defendant’s motion is denied as without merit.

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