Facts of the Case. The defendant was charged by simplified traffic informations with speed not reasonable and prudent (VTL §1180 [a]), improper/no signal (VTL §1163 [d]), moved from lane unsafely (VTL §1128 [a]), refusal to take breath test (VTL §1194 [1] [b]), unregistered motor vehicle (VTL §401 [1] [a]), common law driving while intoxicated (VTL §1192 [3]) and driving while ability impaired by drugs (VTL §1192 [4]) alleged to have occurred on February 21, 2019. The defendant was arraigned on April 3, 2019. At which time defense counsel requested that he be provided with supporting depositions. It is un-controveted that a form check box supporting deposition was timely provided to defense counsel relative to the intoxication charges. Originally, the defense submitted omnibus motions, which for the most part dealt with discovery and trial issues. Subsequently, defense counsel submitted additional omnibus motions requesting, in pertinent part, the following relief: Dismissal of the accusatory instruments as being defective on their face pursuant to CPL §§170.30 (1) (a), 170.35 (1) (a), 100.40 (1) (b), 100.40 (4) (b), and 100.40 (1) (c) and Dismissal of the accusatory instruments in the furtherance of justice (CPL §170.30 [1] [g].1 Defense counsel’s initial motion to dismiss the accusatory instruments was divided into two parts. Addressing said motions in reverse order, the first part deals with a purported failure to provide supporting depositions for the non-driving while intoxicated charges, to wit: speed not reasonable and prudent (VTL §1180 [a]), improper/no signal (VTL §1163 [d]), moved from lane unsafely (VTL §1128 [a]), refusal to take breath test (VTL §1194 [1] [b]) and unregistered motor vehicle (VTL §401 [1] [a]). The second part of said motion deals with the sufficiency of the accusatory instruments. However, based on this court’s ruling on the untimely providing of supporting depositions relative to the traffic infractions, this decision will only address the issue of sufficiency as same pertains to the charge of failure to take the breath test (VTL §1194 [1] [b]) and two intoxication charges, i.e. common law driving while intoxicated (VTL 1192 [3]) and driving while ability impaired by drugs (VTL 1192 [4]) The arresting New York State Trooper, Derik J. Plaisted, executed a two page document. The first page was a standard check box form entitled “Supporting Deposition” and “DWI Bill of Particulars”. Page two of said document was entitled only “710.30 Notice” and was not signed by the trooper. On the said page 2 of that form there is a section entitled “CONVERSATION NARRATIVE”. In that box, which encompasses about half the page are the words “SEE ATTACHED WORD DOCUMENT’. The attached word document, which is a two page single spaced document, is not signed nor does it in any way identify the author of same. Nevertheless, it appears by its tenor to have been written by the arresting trooper. Also filed with the court was a “Supporting Deposition General” executed by an off duty Monroe County Sheriff’s deputy. It was that person that contacted “dispatch” about the car driven by the defendant. The off duty deputy made the call because the defendant allegedly had been tailgating him and trying to run him off the road. However, the supporting deposition of the deputy did not include any terms that would support or tend to support any of the simplified traffic informations filed with court. As a result, said deposition has no effect on any of the issues presented herein. The call by the deputy resulted in the stop by Trooper Plaisted of the defendant’s vehicle in the eastbound portion of route 104 in the Town of Webster. A Webster Police Officer also responded to the scene of the stop. Issues Presented. Was the defendant provided with supporting depositions relative to the traffic infractions? Are the accusatory instruments charging the defendant with failure to take the breath test, driving while ability impaired by drugs and common law driving while intoxicated sufficient on their face? Should the charge of common law driving while intoxicated be dismissed in the furtherance of justice? Legal Analysis. CPL §100.25 (2) provides that “A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon 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. To be timely, such a request must, except as otherwise provided herein and in subdivision three of this section, be made before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto.” CPL §100.20 sets out the required form and content of a supporting deposition. That section states as follows: “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, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.”2 Traffic Infractions. A review of the supporting documents filed with this court fail to allege any factual allegations of an evidentiary character relative to the charges of speed not reasonable and prudent (VTL §1180 [a]), improper/no signal (VTL §1163 [d]), moved from lane unsafely (VTL §1128 [a]) and unregistered motor vehicle (VTL §401 [1] [a]). In fact, the only mention of said charges in the check box supporting deposition is to simply set out the said statue sections with no descriptive language setting out what the defendant was alleged to have done. That does not constitute providing a supporting deposition. Since the thirty day period that commenced after a request for a supporting deposition, as required by CPL §100.25 (2), has long expired, the said charges must be dismissed. Breath Test (VTL §1194 [1] [b)]. The defense argues that the charge of failure to take a breath test should also be dismissed because defense counsel was not supplied with a facially sufficient supporting deposition relative to said charge. The document described as the “ATTACHED WORD DOCUMENT” was attached to the form, which was entitled only as “710.30 Notice”. The People contend that since the last paragraph of the Supporting deposition/ DWI Bill of Particulars is designated “8″ and the first paragraph of the 710.30 Notice was designated “9″, it is implied that the two pages are one document. If true, that would mean the “ATTACHED WORD DOCUMENT” is part of the supporting deposition. In that word document reference is made to the defendant’s alleged refusal to take the said breath test. However, as previously stated, the first page is entitled “Supporting Deposition” and “DWI Bill of Particulars” and the second page is specifically entitled “710.30 Notice” Thus the word document could not be considered by reference as part of the form supporting deposition/bill of particulars. In fact the said Supporting Deposition and DWI Bill of Particulars form makes no reference to any attached documents. Nor could the 710.30 notice satisfy the form and content required of a supporting deposition by CPL 100.20, since it was neither subscribed nor verified by the arresting trooper. However, a review of the Supporting Deposition/DWI Bill of Particulars form indicates that in Section 4 (B) the box for “Screening Test Refusal” is checked. The phrase “Screening Test Refusal” is descriptive enough to sufficiently describe the prohibited behavior. “In People v. Hohmeyer, & 0, NY2d 41, 517 N.Y.S.2d 448, 510 N.E.2d 317 (1987), the Court of Appeals upheld the use of the ‘check box’ format Supporting Deposition/DWI Bill of Particulars commonly used in DWI cases in much of the State.” (Gerstenzang, Handling the DWI Case in New York §11.88 at 392 [2018-2019 ed]). Therefore since a timely and facially sufficient supporting deposition relative to the charge of failure to take a breath test was provided to the defense counsel, the motion to dismiss said charge is hereby denied. Intoxication Charges. The defense contends the simplified traffic informations accompanied by the supporting depositions charging the defendant with common law driving while intoxicated and driving while ability impaired by drugs are insufficient on their face pursuant to CPL 170.35 (1) (a). However, it is well established that the standard applied to criminal informations by People v. Alejandro, 70 NY2d 133 (1987) does not apply to simplified traffic informations.3 In fact CPL §100.40 (2) states as follows: “A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face.” Driving While Ability Impaired by Drugs. Nevertheless a review of the fill in the box standard New York State Trooper supporting deposition filed herein sets out various indicia of intoxication, i.e. odor of alcoholic beverage, glassy eyes, impaired speech, impaired motor coordination seem more directed to a charge of common law intoxication rather than driving while ability impaired by drugs. Although both charges can have some similar indicia. There is also the allegation in said deposition that the defendant refused both the alcohol screening and chemical tests, which would apply to an alcohol related offense. Again the word document attached to the 710.30 Notice for reasons set out above could not be considered part of the supporting deposition. There is nothing in the check box supporting deposition that would support or tend to support the charge of driving while ability impaired by drugs. Therefore, the supporting deposition as it pertains to the charge of driving while ability impaired by drugs would be insufficient on its face. Any conclusion to the contrary would be purely speculative. Thus the accusatory instruments relative to the charge of driving while ability impaired by drugs must be dismissed as being insufficient on their face pursuant to CPL §§100.20 and 100.40 (2). Common Law Driving While Intoxicated. In this case the defendant was charged with common law driving while intoxicated by a simplified traffic information and a supporting deposition. “A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law….” (CPL §100.40 [2]) In addition, the supporting deposition must contain “…factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.” (CPL §100.20). In the instant case there is no doubt that the simplified traffic information is in the proper form. Secondly, the supportingdeposition sets out various common indicia of intoxication, i.e. odor of alcoholic beverage, glassy eyes, impaired speech impaired motor coordination and alleged poor performance on some of the roadside tests, as personally observed by the arresting trooper. Under the facts herein, the simplified traffic information and the supporting deposition taken together establish the appropriate sufficiency of said accusatories relative to the charge of common law driving while intoxicated pursuant to VTL 1192 (3). Dismissal in the Furtherance of Justice. Finally, defense counsel moved to to dismiss all the charges in the furtherance of justice pursuant to CPL §§170.30 (g) and 170.40 (1).The basis of said motion is to explain the actions of the defendant based on his psychological condition before, during and after the time of the event in question. Part of the reason for the defendant’s erratic behavior at the time in question was his refusal to take his prescription medications. The People oppose said motion. Nevertheless, the only remaining charges remaining before the court are that of refusal to take the breath test and common law driving while intoxicated. It is well settled that’” The discretionary authority to dismiss…in furtherance of justice…should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution…would be an injustice’ (People v. Candelaria, 50 AD3d 913, 913, 855 N.Y.S.2d 259 [2008] [citations omitted]).” (People v. Graham, 39 Misc 3d 35,37, 965 N.Y.S3d 271,272 [2013]) This case does not exhibit any compelling factors that would justify such an extraordinary action by the court. The explanation for the actions of the defendant are more relevant to the People in making a plea offer or to the court upon sentencing after a conviction. Thus the motion to dismiss the said remaining charges in the furtherance of justice is hereby denied. Conclusion. The charges of speed not reasonable and prudent, (VTL §1180 [a]), improper/no signal (VTL §1163 [d]), moved from lane unsafely, (VTL §1128 [a]), and unregistered motor vehicle (VTL §401 [1] [a]) are dismissed based on the failure of the defendant to be provided with a supporting deposition within thirty days pursuant to CPL §100.25 (2). The charge of driving while ability impaired by drugs (VTL 1192 [4]) is dismissed because of the facial insufficiency of the accusatory instruments. The motion to dismiss the accusatory instruments relative to the charges of refusal to take breath test (VTL §1194 [1] [b]) and the charge of common law driving while intoxicated as being insufficient on their face is denied. Finally, the motion to dismiss the charge of driving while intoxicated (VTL 1192 [3]) and refusal to take breath test (VTL §1194 [1] [b]) in the furtherance of justice is denied. This constitutes the decision and order of this court. Dated: October 12, 2020
