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To request a Supporting Deposition or not in New York on a traffic ticket.

Posted by attorney Matisyahu Wolfberg

Many people ask me: Should I request the supporting deposition, when given the option to do so on a simplified traffic information? In the old days, and in some limited situations today, requesting a supporting deposition was sort of a tight rope. If the officer does not mail out the supporting deposition within 30 days of the court's receipt of the request, the ticket must be dismissed. However, the officer could re-issue the ticket within 1 year of the alleged violation, as long as the officer files a "long-form" ticket and the officer personally serves the defendant. Thus, a non-represented client in a traffic ticket case may not be advised to pursue the deposition route because, even if the court dismisses the ticket, the officer can reissue it on the spot to the motorist.

There is, however, a line of cases beginning with People v. Rosenfeld which held that it went against the "spirit" of the Criminal Proceedure law to allow the officer to re-issue the ticket. Nevertheless, often cops will do it anyway and the lower courts allow them to do it and then the motorist is left with the option of a costly appeal.

On the flip side, if the officer does provide the deposition, then he will likely be angry with the motorist becuase of the extra work he had to do on the case, and the deal offered will likely be less favorable.

Today, practically speaking the issue of the supporting deposition has largely fallen away due to new electronic tickets which by default, at least in regard to NY State Trooper speeding tickets, include the supporting deposition at the time of the issuance of the ticket to the motorist.

However, because my jurisdications have prosecutors who handle tickets, even thouse issued by local officers who don't always include the depositions, often times motorists and especially lawyers, can "get away" with getting dismissals on lack of supporting depositions because the officer who issued the ticket is often not there and is not ashamed and therefore will usually not attempt the "re-issue" of the summons, which can cause so many problems.

So, in the end it is a gamble, to request it or not, and a usually a non-represented client is poorly prepared for the flight which often ensues when attempting to make a motion to dismiss for failure to provide a supporting deposition; more and more courts, for example, are requiring written motions to dismiss which that alone can knock out a non-represented client's chances for dismissal on this basis.

Matisyahu Wolfberg, Esq.

NY Traffic and Criminal Attorney

Additional resources provided by the author

PEOPLE v. ROSENFELD, 163 Misc.2d 982 (1994) 626 N.Y.S.2d 352 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NORMAN ROSENFELD, Appellant Supreme Court, Appellate Term, Second Department December 20, 1994

Appeal from the Justice Court of the Town of Wallkill, OrangeC ounty, Ray Shoemaker, J.
Norman Rosenfeld, appellant pro se. Francis D. Phillips II, District Attorney of Orange County, Goshen (Anthony R. LoBiondo of counsel), for respondent.
Page 983
MEMORANDUM. Judgment of conviction unanimously reversed as a matter of discretion in the interest of justice, simplified information
dismissed and fine remitted.
Defendant was issued a simplified traffic information which charged him with speeding in violation of section 1180 (b) of the
Vehicle and Traffic Law. Defendant entered a plea of not guilty
and the matter was set down for trial on October 21, 1993. On
that date the information was dismissed for failure to timely
serve and file a supporting deposition. Defendant was immediately
issued a new simplified information and a supporting deposition
based on the same allegations. Following a trial thereon
defendant was found guilty. Since the record in the case at bar
fails to disclose any special circumstances, it is this court's
opinion that the court abused its discretion when it permitted
defendant to be tried based upon the new simplified information
and supporting deposition (see, People v Aucello, 146 Misc.2d 417).
Such actions, in this court's opinion, defeat the very
purpose of the CPL, disregard the interests of judicial economy
and, often times, render the defense of traffic matters
impracticable. In view of the foregoing, the judgment of
conviction should be reversed as a matter of discretion in the
interest of justice (see, CPL 470.15 [3] [c]; cf., People v
Nuccio, 78 N.Y.2d 102).
STARK, J.P., COLLINS and LUCIANO, JJ., concur.Page 984

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