Appeal from an order of the District Court of Nassau County, First District (Anthony William Paradiso, J.), dated April 13, 2010. The order denied the People's motion for leave to amend seven simplified traffic informations charging defendant with, respectively, driving while intoxicated per se, moving from a lane unsafely, consuming alcoholic beverages in a moving vehicle, unlicensed operation of a motor vehicle, excessively tinted side windows, excessively tinted rear windows and operating an uninspected motor vehicle, and granted a motion by Gregorio Matos to dismiss the simplified traffic informations.

ORDERED that the order is reversed, on the law, the People's motion for leave to amend the seven simplified traffic informations is granted on condition that, within 30 days of the date of this decision and order, the People amend the seven simplified traffic informations by listing the defendant's name on each to read James Correa also known as Gregorio Matos, and by deleting any personal information appearing thereon relating to Gregorio Matos on each and substituting therefor personal information relating to James Correa, and the motion by Gregorio Matos to dismiss the seven simplified traffic informations is dismissed as academic.

A Nassau County police officer arrested an individual and charged him in separate simplified traffic informations with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), moving from a lane unsafely (Vehicle and Traffic Law § 1128 [a]), consuming alcoholic beverages in a moving vehicle (Vehicle and Traffic Law § 1227 [1]), unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]), excessively tinted side windows (Vehicle and Traffic Law § 375 [12-a] [b] [2]), excessively tinted rear windows (Vehicle and Traffic Law § 375 [12-a] [b] [3]) and operating an uninspected motor vehicle (Vehicle and Traffic Law § 306 [b]). The individual identified himself as Gregorio Matos and, [*2]thus, each accusatory instrument bears the name Gregorio Matos as well as Mr. Matos' driver's license data. The individual was arraigned under the name of Gregorio Matos. When the individual failed to appear in court as scheduled, the District Court issued a bench warrant for his arrest.

Gregorio Matos subsequently appeared in the District Court after an officer at a police checkpoint informed him that the District Court had issued a warrant for his arrest. Matos' counsel examined the New York State Identification (NYSID) report and determined that Matos' brother-in-law, James Correa, who also was in court, was in fact the individual pictured in the NYSID report. Furthermore, the NYSID report listed the names Gregorio Matos and James Correa for defendant's identification. It also included "job and license information" under the name James Correa. Matos' counsel surmised that Mr. Correa was the individual whom the police had arrested and that he "gave the officer [Mr. Matos'] name and birth date information" because he did not have his driver's license with him.

Thereafter, the People moved for leave to amend the seven simplified traffic informations and Matos' counsel moved to dismiss the simplified traffic informations pursuant to CPL 170.30 (1) (f) and (g) on the ground that Matos did not commit the charged offenses. By order dated April 13, 2010, the District Court granted Matos' motion to dismiss the simplified traffic informations under CPL 170.30 (1) (g), and denied the People's motion for leave to amend.

The District Court improperly denied the People's motion for leave to amend the seven simplified informations as it is well settled that "an error in description or name may be corrected or disregarded, and where a defendant is indicted by a fictitious or erroneous name, his true name may be inserted whenever that is discovered" (People v Iqbal, 31 Misc 3d 94, 96 [App Term, 9th & 10th Jud Dists 2011]; see People v Ganett, 51 NY2d 991 [1980]; People v Bogdanoff, 254 NY 16, 29 [1930]; People v Mezzapella, 19 AD2d 729 [1963]).

In view of the foregoing, and under the circumstances presented, it was error for the District Court to dismiss the seven simplified traffic informations (see generally People v Johnson, 253 AD2d 702 [1998]). We note that the amendments sought do not change the theory of the cases and will not surprise or prejudice James Correa (see People v Easton, 307 NY 336, 338 [1954]), who was arraigned and was present in court when the People made their motion. We note that James Correa must still receive notice of the amendments. To the extent that the case of People v Almendarez (24 Misc 3d 649 [Dist Ct, Nassau County 2009]) holds to the contrary, it should not be followed.

In light of the foregoing, this court need not address the People's remaining contentions.

Accordingly, the People's motion for leave to amend the seven simplified traffic informations is granted on condition that, within 30 days of the date of this decision and order, the People amend the seven simplified traffic informations by listing the defendant's name on each to read James Correa also known as Gregorio Matos, and by deleting any personal information appearing thereon relating to Gregorio Matos on each and substituting therefor personal information relating to James Correa, and the motion by Gregorio Matos to dismiss the seven simplified traffic informations is dismissed as academic. The People shall also correct any other records concerning Gregorio Matos in connection with this incident.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: August 01, 2011