New York Criminal Attorney Blog
New York Traffic Lawyers Tilem & Associates successfully won a motion which resulted in a speeding ticket being dismissed completely on novel grounds. Our client was charged with a violation of VTL §1180 (c) for traveling 40 miles per hour in a 25 mile an hour zone. Approximately 15 days after receiving the ticket, the Defendant mailed the ticket to court indicating that he was pleading not guilty and further indicating that he was requesting supporting depositions.
New York Criminal Procedure Law § 100.25(2) provides that a defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to a supporting deposition of a complainant police officer and that upon such a request, a court must order the officer to serve a copy of the same within 30 days of the date such request is received by the court, or at least five days before trial, whichever is earlier.
Approximately six days after receiving the Defendant’s request, the Court mailed an order for the supporting deposition to the local sheriff’s department and acknowledged the Defendant’s request. Approximately six days after that the Defendant received a copy of the supporting deposition. However, the affidavit of service accompanying the supporting deposition says that it was mailed to the Defendant but it not specify the address of the Defendant to which the supporting deposition was allegedly mailed.
An affidavit of service that failed to set forth the address to which the supporting deposition was mailed fails to establish that a proper mailing occurred as required by law. N.Y. C.P.L.R. §§2103 (c) and (f)(1). See also People v. Hollinger, 15 Misc. 2d 130(A), 839 N.Y.S.2d 435, 2007 N.Y. Misc LEXIS 1227; 2007 NY Slip Op 50622(U)(App. Div. 2nd Dep’t 2007).
In our case, while the supporting deposition was mailed timely, the affidavit of service affixed to it failed to provide the mailing address of the Defendant as required by law. Further, the supporting deposition was sent timely to the Defendant but the People never corrected this defective service issue. By failing to correct the service issue, the People divested the Court of jurisdiction and the Court could not proceed on the simplified traffic informations, because this was a divestiture that cannot be “cured. See People v. Aucello, 146 Misc. 2d 417, 558 N.Y.S.2d 436 (App Div. 2nd Dep’t 1990); People v. Rossi, 154 Misc. 2d 616, 587 N.Y.S.2d 511 (1992 Just Ct, Vil of Muttontown 1992, Kaminsky, J.); People v. Green, 192 Misc. 2d 296, 745 N.Y.S.2d 656 (2002 N.Y. Dist. Ct. Nassau Cnty).
Thus, because the affidavit of service lacked the required information, in accord with case law, the People of the State of New York could not establish that a proper mailing occurred. Because that proper mailing never occurred and the supporting depositions were in essence never served, we were able to obtain a complete dismissal for our client.
If you receive a ticket for speeding or another moving violation, do not simply pay the ticket and plead guilty without knowing all of the consequences. Contact us for a free telephone consultation to discuss your ticket and all of the potential penalties that may be imposed.