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People v. Greco

New York Supreme Court, Appellate Term, Second Department


June 6, 2006

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
THOMAS GRECO, APPELLANT.

Accepted for Miscellaneous Reports Publication

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 20, 2006

{**12 Misc 3d at 70}

OPINION OF THE COURT

Memorandum.

Judgment of conviction reversed on the law and accusatory instrument dismissed.

Defendant was originally charged in a simplified traffic information dated October 10, 2003, with passing a stopped school bus at "N. Airmont Rd. [&] Ashwood" in violation of Vehicle and Traffic Law § 1174 (a). The village where the alleged incident occurred was identified on the face of the instrument as "Airmont" and defendant was directed to appear in the Village Court of Airmont. The next day, the complaining officer executed an accusatory instrument denominated a "SUPERCEDING SIMPLIFIED TRAFFIC INFORMATION" and "SUPPORTING DEPOSITION TO SIMPLIFIED TRAFFIC INFORMATION(S)" wherein it was alleged that the incident occurred in Ramapo and mailed it together with the original simplified traffic information to the defendant. At trial, defendant moved to dismiss the original simplified traffic information on the ground that it was defective and improperly superseded. The court below denied the motion and tried defendant on the "SUPERCEDING SIMPLIFIED TRAFFIC INFORMATION."

The Criminal Procedure Law does not provide for the filing of a superseding simplified traffic information. Pursuant to CPL 100.50, only informations, prosecutor's informations and misdemeanor complaints may be superseded by another information or prosecutor's information. Therefore, defendant could not be prosecuted upon said accusatory instrument (see People v Baron, 107 Misc 2d 59 [App Term, 9th & 10th Jud Dists 1980]). Insofar as the original simplified traffic information and the "SUPPORTING DEPOSITION TO SIMPLIFIED TRAFFIC INFORMATION(S)" are inconsistent with respect to where the offense occurred, the People were required to move to amend as to said defect or irregularity (see CPL 170.30 [1] [a]; 170.35 [1] [a]). However, the People never so moved. Consequently, the judgment convicting defendant of passing a stopped school bus is reversed and the accusatory instrument dismissed.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.

20060606

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