People v Rathgeber (2009 NY Slip Op 50653(U))

People v Rathgeber (Melissa)

2009 NY Slip Op 50653(U) [23 Misc 3d 130(A)]

Decided on April 7, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

Melissa R. Rathgeber, Appellant.

Appeal from a judgment of the Justice Court of the Town of Bedford, Westchester County (Charles G. Banks, J.), rendered August 15, 2007. The judgment convicted defendant, after a nonjury trial, of speeding.

Judgment of conviction reversed, on the law, fine, if paid, remitted and information dismissed.

In or about December 2006, plaintiff was charged in a simplified traffic information with speeding (Vehicle and Traffic Law § 1180 [d]), in that she allegedly drove 97 miles per hour in a 65 miles per hour zone. In July 2007, said simplified information was dismissed because the People failed to provide defendant with a supporting deposition. On the same day, the People re-filed the charge against defendant in a long form information. Following a nonjury trial, defendant was convicted of speeding. The instant appeal by defendant ensued.

Upon a review of the record, we find that the long form information was facially insufficient (see CPL 100.15, 100.40). Accordingly, the judgment of conviction is reversed and the information dismissed.

We note, however, that even were the long form information sufficient, defendant would be entitled to seek its dismissal in the interest of justice, given the circumstances presented herein. A motion to dismiss an accusatory instrument in the interest of justice presents numerous factors for consideration by the court, including the impact of dismissal upon the confidence of the public in the criminal justice system (see CPL 170.40 [1]). Thus, where a prior simplified traffic information is dismissed for failure to serve a requested supporting deposition (see CPL 100.40 [2]; People v Rosenfeld, 163 Misc 2d 982, 983 [App Term, 9th & 10th Jud Dists 1994]; People v Aucello, 146 Misc 2d 417 [App Term, 9th & 10th Jud Dists 1990]; see also People v Berger, 16 Misc 3d 133[A], 2007 NY Slip Op 51498[U] [App Term, 9th & 10th Jud Dists [*2]2007]; cf. People v Nuccio, 78 NY2d 102 [1991]), absent special circumstances warranting re-prosecution of the defendant upon a new accusatory instrument, the denial of a motion to dismiss a re-filed accusatory instrument would constitute an improvident exercise of discretion since it would defeat the very purpose of CPL 100.40 (2), disregard the interest of judicial economy (see Rosenfeld, 163 Misc 2d at 983), and erode the confidence of the public in the criminal justice system (see CPL 170.40 [1]).