People v. Midgett (Archie)

People v Midgett (2021 NY Slip Op 50588(U)) [*1] People v Midgett (Archie) 2021 NY Slip Op 50588(U) [72 Misc 3d 127(A)] Decided on June 24, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 24, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ 2019-1002 S CR The People of the State of New York, Respondent, against Archie Midgett, Appellant. Johnathan Cartelli, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent. Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Debra Urbano-DiSalvo, J.H.O.), rendered April 18, 2019. The judgment convicted defendant, after a nonjury trial, of using a portable electronic device while operating a motor vehicle while in motion, and imposed sentence. The appeal brings up for review an oral order of that court denying defendant's motion to dismiss the simplified traffic information. ORDERED that the judgment of conviction is reversed, on the law, defendant's motion to dismiss the simplified traffic information is granted, and the fine, if paid, is remitted. Following a nonjury trial, defendant was found guilty of using a portable electronic device while operating a motor vehicle while in motion (Vehicle and Traffic Law § 1225-d [1]), and sentence was imposed. On appeal, defendant contends, among other things, that the court improperly denied, as untimely, his written motion to dismiss based upon the People's failure to serve and file a requested supporting deposition. The court incorrectly ruled that defendant's motion to dismiss the simplified traffic information was untimely. CPL 170.30 provides that a motion to dismiss a simplified information should be made within the time period denoted in CPL 255.20, which provides that it shall be served or filed within 45 days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to the entry of judgment (see CPL 255.20 [1]). Here, the court's return, by which this court is bound (see People v Prior, 4 NY2d 70, 73 [1958]), states that defendant's motion was submitted the afternoon of the trial and it is uncontested that the trial occurred at night. Thus, despite the [*2]People's contention to the contrary, the motion was filed before the commencement of trial and therefore was timely. Additionally, as indicated in the return, one of the court's reasons for denying defendant's motion was that counsel did not raise the issue that there was a pending written motion until after the trial had commenced and the police officer had completed his direct examination. In the context of speedy trial and suppression motions (see CPL 30.30, 710.40), courts have held that, when a defendant proceeds to trial despite the court's failure to decide such a pending motion, the motion is deemed abandoned and the claim waived (see e.g. People v Wilson, 90 AD3d 1155 [2011]; People v Martin, 81 AD3d 1178 [2011]; People v Green, 19 AD3d 1075 [2005]; People v Wright, 5 AD3d 873 [2004]; People v Hill, 51 Misc 3d 134[A], 2016 NY Slip Op 50543[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). However, we do not extend this doctrine to apply to a motion to dismiss a simplified traffic information for failure to provide a supporting deposition, which motion implicates jurisdiction. When a defendant is charged in a simplified traffic information with a Vehicle and Traffic Law violation and makes a timely request for a supporting deposition, he or she is entitled, as of right, to receive a supporting deposition of the complainant police officer and, upon such a request, the court must order the complainant police officer to, among other things, "file such supporting deposition with the court together with proof of service thereof" (CPL 100.25 [2]; see People v Key, 45 NY2d 111, 116 [1978]). Here, defendant denied ever receiving the requested supporting deposition and, indeed, the record does not demonstrate that a supporting deposition was filed with the court together with proof of service thereof. Consequently, under the particular circumstances of this case, the People failed to demonstrate their compliance with CPL 100.25 (2). This failure "renders the simplified [traffic] information insufficient on its face" (CPL 100.40 [2]; see People v Wagschal, 59 Misc 3d 29 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Accordingly, the judgment of conviction is reversed and defendant's motion to dismiss the simplified traffic information is granted. RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 24, 2021