The opinion of the court was delivered by: Thomas J. DiSalvo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The defendant was previously charged with Common Law Driving While Intoxicated, V.T.L. 1192(3), Aggravated Driving While Intoxicated, V.T.L. 1192(2-a), Imprudent Speed, 1180(a) and Moved From Lane Unsafely, V.T.L. 1128(a) on December 16, 2007. The charges of Common Law Driving While Intoxicated, V.T.L. 1192(3), Aggravated Driving While Intoxicated, V.T.L. 1192(2-a) were subsequently dismissed, without prejudice, by this court on February 21, 2008, because the supporting deposition was not sufficient on its face, pursuant to C.P.L. 100.40(2) and 170.30(1). The reason for the insufficiency was that the form DWI supporting deposition did not indicate specifically how the arresting officer knew the defendant operated the vehicle in question. See People v. Cordeiro, (2008) 18 Misc 3d 1135(A), 859 N.Y.S.2d 897, 2008 NY Slip. Op. 50320(U). The remaining charges were withdrawn by the prosecution.
The People re-filed all four charges on April 15, 2008 via Simplified Traffic Informations. The defendant was arraigned on said charges on May 7, 2008. The people relied on the original form DWI supporting deposition dated December 7, 2007. Said supporting deposition attested to various indicia of intoxication relative to the original charges that were dismissed by the court. In addition the arresting officer filed a new supporting deposition, affirmed on April 14, 2008, which alleged how the officer determined that the defendant was the driver of the vehicle in question. However, said supporting deposition failed to attest to the physical condition of the defendant at the time of the arrest.
Defense counsel moved to dismiss the re-filed common law and aggravated driving while intoxicated charges on two grounds. First, the defense contends that the re-filed accusatory instruments before the court were insufficient, since C.P.L. 160.50(1)( c) forbids the use of a prior supporting intoxication deposition issued in support of charges that were previously dismissed.
Second, the defense contends that the current charges should be dismissed on statutory speedy trial grounds pursuant to C.P.L. 30.30(1)(b).
The People argue that the file, relative to the original charges, was never sealed, because the People were never served with a Notice of Entry of the order of dismissal by the defense.
Based on that fact, the People contend that reliance on the original intoxication supporting deposition was justified, which would then satisfy the non-hearsay requirements of C.P.L. 100.40(1)( c). Lastly, the People maintain that the defendant has not been denied his speedy trial rights.
Can the People rely on the supporting deposition filed as part of the initial case that was dismissed without prejudice?
Was the sealing of the court's file precluded by the fact that the defendant did not serve the court's order of dismissal on the District Attorney?
Should the instant case be dismissed for failure to timely prosecute this matter ...