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People v. Almendarez

April 15, 2009


The opinion of the court was delivered by: David Goodsell, 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.

Geronimo Almendarez seeks a dismissal of the action against him based upon a variety of grounds including a legal impediment prevents prosecution (CPL 170.30(f)), the information is defective (CPL § 170.35(1)(a)) and in the interests of justice (CPL § 170.40).

The Prosecution opposes the application by indicating the movant is not the true Defendant in the action. The Prosecution contends the proper party is the person arraigned who is not moving to dismiss. Finally, the People seek amendment of the simplified information to change the name of the Defendant.


On May 23, 2008 at 2:57 a.m., an individual carrying the driver's license of Geronimo Almendarez was stopped at Greenwich and Oak Street in the Village of Hempstead, Nassau County, New York for failing to wear a seat belt (VTL § 1229c-3) and operating a vehicle with a cracked front windshield (VTL § 375-22). Upon approaching the vehicle, Police Officer Raymon Buttacavoli observed the driver to have glassy eyes. The driver responded to questions with slurred speech and an odor of alcohol emanated from him. After failing standard field sobriety tests, the police arrested the driver.

Arraignment of the driver took place on May 23, 2008. Bail was set and posted. Thereafter, Geronimo Almendarez came forward and claimed he did not drive the vehicle which was stopped by the police on May 23, 2008. Geronimo claimed his brother Cleofe Almendarez used Geronimo's license and identity. Geronimo submits an affidavit which indicates he learned of his brother's arrest when tickets turned up in Geronimo's mailbox a couple of days after the arrest. Cleofe called Geronimo a couple of days later according to the affidavit submitted in the moving papers. Cleofe advised Geronimo that Cleofe used Geronimo's license and was arrested for DWI. While no proof of identity is offered in support of the motion to dismiss by Geronimo, the People concede that Geronimo did not operate the vehicle and that Cleofe Almendarez did. The concession by the Prosecution of the identity of the driver followed a preliminary determination of the present motion. The preliminary determination ordered a hearing to determine that Geronimo did not operate the vehicle in question and was not arrested due to ambiguities in the submitted papers. The Prosecution conceded the point rather than proceed to hearing. A decision on the merits of the motion is now rendered.


The issue before the Court is whether the Prosecutor may maintain a criminal proceeding via simplified information against a defendant who has assumed the identity of another individual. The follow-up question is whether a prosecutor may amend a simplified information to change the name of the defendant. The answer to both question in the circumstances of this case must be no for the reasons set forth below.

The problem of a form of identity theft has arisen on several occasions already this year acquiring the informal title of "Right Guy-Wrong Guy" cases. Despite the frequency of encountering these identity cases, no reported cases have addressed the issue presented by this case.

Simplified traffic informations are written accusations by a police officer or authorized individual charging a person with one or more traffic infractions or vehicular misdemeanors in a brief or simplified form prescribed by the Commissioner of Motor Vehicles. CPL § 1.20(5)(b). CPL § 100.10. A simplified traffic information designates offenses charged, but contains no factual allegations of an evidentiary nature supporting the charges unless a supporting deposition is demanded. CPL § 100.10, CPL § 100.25(2). A simplified traffic information may serve as in whole or in part as the basis of prosecution. CPL § 100.10.

Among the information contained within the New York State Department of Motor Vehicle simplified traffic information form is the name, address and driver's license number, as well as the date of birth and license expiration date. Vehicular registration information is also listed on the simplified information. Beneath the personal and vehicular data are the words, "the person described above is charged as follows." The notations written below the charging language contain the time, date, and section of law violation followed by the description of the offense and the place of occurrence.

The simplified information becomes in part the basis for a license suspension where as here, VTL § 1192.2 is charged. VTL § 1193(2)(b)(7) requires the suspension of the driver's license pending prosecution of any individual charged with violating VTL § 1192.2.

The interplay of the true identity of a driver and the driver's license comes a critical distinction because not only is the body of the driver subjected to detention, but the license to operate a motor vehicle can be suspended or even revoked. Where the body of the driver ...

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