Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 1, #6©

Issue: What are the requirements for obtaining a supporting deposition after People v Perry and the amendment to CPL 100.25?

A MOTORIST who receives a traffic ticket (simplified traffic information) is entitled to request a supporting deposition. Failure to provide this results in the traffic ticket being defective and subject to dismissal CPL 100.25(2).

Prior to 1996, the common practice of requesting supporting depositions was a tad sloppy, and not in harmony with the statute. In People v Perry, the Court of Appeals of New York let the legal community know that the statutory requirements were to be followed with the defense's failure to conform leading to the traffic charge therein being reinstated. The attorney's "appearance letter," entry of not-guilty plea and request for supporting deposition did not dispense with the need for arraignment, required by CPL 100.25(2), and thus did not trigger the prosecution’s obligation to furnish a supporting deposition. Perry, 87 NY2d 353, 639 NYS2d 307 (1996).

After Perry, the state legislature amended CPL 100.25 in a manner not in conformity with Perry’s holding. Perry was decided on February 8,1996; the amendment to 100.25 was effective October 27, 1996.

What does Perry stand for now? Arguably, nothing; the statute the Court of Appeals of New York interpreted no longer exists. But it should still serve for the proposition of strict compliance in requesting a supporting deposition, even though the specific requirements of the old 100.25 no longer apply. Handling a Criminal Case in New York, sec 3:73.

An arraignment normally occurs in person, but with a traffic ticket it may be made by mail. A not guilty plea by mail (certified, registered or first class) must be made within 48 hours. VTL sec. 1806.
 
Few reported decisions have cited Perry. One 1997 decision cited it as controlling authority, but the traffic infractions at issue in that case occurred prior to the amendment to 100.25. People v Maran, 174 Misc2d 327, 666 NYS2d 870 (App Term 2nd Dept 1997).

More recently, a decision from the Justice Court of the Village of North Hills discussed the requirements of a supporting deposition and Perry’s applicability. People v Guerrerio, 181 Misc2d 517, 694 NYS2d 618(1999).

Under CPL 100.25 as amended, a defendant upon timely request is entitled to a supporting deposition. To be timely, the request must be made within 30 days after the date the person is required to appear in court. The request may be made by mail. (Where the charge is a misdemeanor, the defendant, for good cause shown, may request a deposition up to 90 days after the return date. CPL 100.25(3).)

The defendant in Guerrerio mailed in his not guilty pleas (although not within 48 hours) and the request for depositions prior to the return date on the ticket Because the mailing was not performed within 48~hours, it did not constitute an arraignment under VTL sec. 1808. The prosecution, citing Perry, argued that an arraignment was required. The village justice disagreed. Terming it a case of first impression, the court stated that the issue was “whether, in the absence of a valid arraignment the request for a supporting deposition was timely.” Perry was not controlling The court held the failure to provide the supporting depositions within the 30-day period required dismissal of the six traffic tickets.

Remember, there are two 30-day time periods at work here. If the defense wants a supporting deposition, it must be made within 30 days after the court date noted on the ticket And, after request, the prosecution has 30 days from receipt by the court to supply the deposition, or the ticket is defective. Under Guerrerio, both of these periods can start prior to the defendant appearing in court.

IT should be noted that the two statutes have different mailing requirements VTL Sec. 1806 requires the mailing be done within 48 hours of receiving the ticket; CPL 100.25(2) has no such restricted time period. The right to a supporting deposition under 100.25(2) is separate from the defendant's entry of a plea under VTL sec 1806, though they can be accomplished in the same mailing.

Perry required an arraignment as a condition of triggering the providing of a deposition because former 100.25(2) required it (“…defendant arraigned upon a simplified information is, upon a timely request, entitled as a matter of right to have…a supporting deposition.") Under the amended section no arraignment is required to trigger the right to the deposition. ("A defendant charged by simplified information is, upon a timely request, entitled as a matter of right to have…a supporting deposition…. To be timely, such a request must…be made…not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information. …If the defendant’s request is mailed to the court, the request must be mailed within such thirty day period.")

According to Guerrerio, CPL 100.25 was amended to avoid situations where a person who gets a ticket appears in court years after the return date and requests a supporting deposition. Under the new statutory language, the time limit to request it is 30 days after the tickets return date, regardless of whether the defendant has been validly arraigned.
For motion papers to dismiss a traffic ticket as defective due to no timely supporting deposition, see Handling, Forms 3K and L.

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