December 10, 2018, defendant was arraigned on simplified traffic informations charging her with driving a vehicle in the incorrect direction upon a roadway designated for one-way traffic (VTL §1127(a)), and driving while intoxicated (VTL §1192(3)), both alleged to have occurred on November 3, 2018. On December 11, 2018, a document titled “Prosecutor’s Information” was filed with the court charging defendant with aggravated driving while intoxicated, per se (VTL §1192(2-a)(a)), and driving while intoxicated, per se (VTL §1192(2)). Defendant was arraigned on the latter charges on January 3, 2019.Defendant moves to dismiss all the charges. Defendant argues that the charges arraigned on December 10, 2018 were dismissed by operation of law pursuant to CPL §100.50(2) when defendant was arraigned on the prosecutor’s information. Additionally, the prosecutor’s information is defective and should likewise be dismissed as it is not authorized pursuant to CPL §100.50(2). Defendant asserts that CPL §100.50(2) only permits a superseding prosecutor’s information where it charges offenses supported by the allegations and factual part of the original information and/or any supporting depositions. In addition, the crimes charged in the prosecutor’s information contain factual allegations, specifically, the toxicology report, that were not contained in the original simplified traffic informations and supporting depositions.The People concede that they filed a prosecutor’s information, but oppose defendant’s motion arguing that People v. Thomas provides the right to file a prosecutor’s information charging the defendant with new crimes which, though partially based on new facts, are still supported in the underlying information. 4 NY3d 143 (2005). The People argue that the Thomas Court held that nothing in CPL §100.50(2) “restricts the People’s ability to provide additional factual detail in a new information.” Id. at 147. With respect to the charges contained in the original simplified traffic informations, the People argue that CPL §100.50(1) and Thomas permits them to bring a prosecutor’s information charging new joinable crimes.CPL §100.50(1) addresses the circumstance where a superseding information or prosecutor’s information contains at least one of the offenses contained in the first accusatory instrument. CPL §100.50(2) addresses the circumstance where the superseding prosecutor’s information does not contain any of the offenses contained in the first accusatory instrument. Notably and significantly, both sections by their terms apply only to informations or superseding prosecutor’s informations, and do not apply to misdemeanor complaints or simplified informations.Even assuming CPL §100.50(1) and CPL §100.50(2) can be read to apply to a simplified information, the People, statutorily, would be required to comply with CPL §100.10(3). That section provides that a prosecutor’s information can be filed only at the direction of the grand jury; or at the direction of the local criminal court pursuant to CPL §180.50 or 180.70; or at the district attorney’s own insistence pursuant to CPL §100.50(2); or at the direction of superior court pursuant to CPL §210.20. Here, none of these circumstances exist.Reliance on Thomas is misplaced as the Thomas defendant was originally charged by information and the People filed a superseding and supplemental information. People v. Thomas, 4 Misc 3d 57, 59 (Sup Ct App Term, 2d Dept 2004), affd 4 NY3d 143 (2005) (emphasis added). As the prosecutor’s information filed here is not authorized, the document is a nullity and is dismissed. See People v. Flood, 25 Misc 3d 843 (Dist Ct Nassau Co. 2009), People v. Donnelly, 30 Misc 3d 136(A) (Sup Ct App Term 9th and 10th Judicial Dist 2010), People v. Williams, 32 Misc 3d 135(A) (Sup Ct App Term 9th and 10th Judicial Dist 2011), People v. Greco, 12 Misc 3d 83 (Sup Ct App Term 9th and 10th Judicial Dist 2006). Given that the prosecutor’s information is an nullity, the defendant’s motion to dismiss the simplified traffic informations is denied as well.Having held that the December 11, 2018 counts charging Vehicle and Traffic Law offenses cannot be commenced by a prosecutor’s information, the issue then becomes what is the appropriate mechanism by which additional charges can be brought.In 1962, the Legislature passed the first statute creating and defining a simplified traffic information. See Code Crim Pro §147-a. At the time, a simplified traffic information had a similar, although not identical, definition to that of today. Compare Code Crim Pro §147-a with CPL §1.20(5)(b), CPL §100.10(2)(a). While there is scant legislative history on the 1962 statute, Governor Rockefeller filed a memorandum approving the new procedure. 2 McKinney’s Session Laws of New York, 1962, p. 3643. Specifically, “[t]he proposed bill will greatly facilitate the prosecution of traffic violations and the submission of convictions certificates to the Department of Motor Vehicles. At the same time, adequate safeguards to the rights of the defendant are provided by the requirement that defendant be advised by the Court of his right to a bill of particulars of the violation charged and by preserving his right to request a bill of particulars at any stage of the proceedings.” Id.Use of the simplified traffic information carried over from the Code of Criminal Procedure to the Criminal Procedure Law after its passage in 1970. See generally CPL §1.20(5)(b), CPL §100.10(2)(a). Moreover, the simplified traffic information was recently described by the Court of Appeals as “a streamlined instrument designed for the expeditious processing of traffic infractions.” People v. Fernandez, 20 NY3d 44, 47-48 (2012). Thus, based on the foregoing, it appears that the Legislature’s preference was that the prosecution of Vehicle and Traffic Law offenses be commenced by simplified traffic information.In addition, case law appears to support that Vehicle and Traffic Law prosecutions can also be commenced by information or complaint. The original simplified traffic information sections of the Code of Criminal Procedure permitted Vehicle and Traffic Law offenses to be commenced by simplified traffic information, information, or complaint. Code Crim Pro §147-b. While the Legislature did not specifically provide for commencement by information or complaint when the Code of Criminal Procedure was replaced with the CPL, the approach was recognized as appropriate by the Court of Appeals in Fernandez. There, the Court observed that “[t]raffic misdemeanors may be prosecuted in criminal court by a misdemeanor information, misdemeanor complaint or simplified traffic information.” Fernandez, supra at 47. So while the preferred method of commencement of prosecution for Vehicle and Traffic Law offenses seems to be the simplified traffic information, case law allows for commencement by information or complaint.In summary, the prosecutor’s information is a nullity and is dismissed, and the defendant’s motion to dismiss the simplified traffic informations arraigned on December 10, 2018 is denied, both without prejudice to the People commencing any additional Vehicle and Traffic Law offenses either by simplified traffic information, information or complaint.This shall constitute the Decision and Order of the Court.Dated: March 1, 2019
