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The People of the State of New York v. Robert B. Roche

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


May 9, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
ROBERT B. ROCHE,
APPELLANT.

Appeal from a judgment of the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency (Allen S. Mathers, J.), rendered August 28, 2009.

People v Roche (Robert)

Decided on May 9, 2011

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The judgment convicted defendant, after a non-jury trial, of speeding, and imposed a fine and a suspended 10-day term of incarceration.

ORDERED that the judgment of conviction is modified, on the law, by deleting the portion of the sentence imposing a suspended 10-day term of incarceration and substituting therefor a provision imposing an unconditional discharge; as so modified, the judgment of conviction is affirmed.

Defendant was charged in a simplified traffic information with speeding (Vehicle and Traffic Law § 1180 [b]). At the non-jury trial, a police officer testified that he had estimated that defendant's vehicle was traveling at 120 miles per hour in a 55 miles per hour zone. Thereafter, the officer had used a laser device, which had indicated that the speed of the vehicle was 117 miles per hour. The District Court found defendant guilty of speeding.

Contrary to defendant's contention, the District Court did not err in denying his pre-trial motion to dismiss the simplified traffic information on the grounds that it did not adequately describe the place of occurrence and that the supporting deposition failed to specify the equipment used to verify the speed. A simplified traffic information is sufficient on its face when it substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (CPL 100.25, 100.40 [2]; see People v Ferro, 22 Misc 3d 7 [App Term, 9th & 10th Jud Dists 2008]; People v Eshaghpour, 12 Misc 3d 134[A], 2006 NY Slip Op 51193[U] [App Term, 9th & 10th Jud Dists 2006]). Upon a timely request, a complainant police officer must file a supporting deposition containing allegations of fact based either on personal knowledge or information and belief which provide reasonable cause to believe that the defendant committed the offense charged (see CPL 100.25 [2]; see also CPL 100.40 [2]). The simplified traffic information and the supporting deposition filed herein satisfied the aforementioned criteria.

Defendant further contends that the People's failure to provide him with the police officer's memo book and the additional supporting deposition, which was discovered by the defense after trial, violated the Rosario rule, and "constitutes per se error requiring that the conviction be reversed," and that "a Rosario violation is not subject to a harmless error analysis." Defendant is incorrect. CPL 240.75 abrogated the per se Rosario rule (see People v Sorbello, 285 AD2d 88, 95 [2001]). The record on appeal indicates that defense counsel was provided with the relevant contents of the officer's memo book at trial, and we note that there is only one inconsequential difference between the supporting deposition which was provided to defendant and the additional supporting deposition which defendant did not receive until after trial. In any event, reversal is not warranted since defendant failed to show "that there is a reasonable possibility that the non-disclosure materially contributed" to his conviction (CPL 240.75 [1]). Moreover, defendant failed to preserve his contention that the evidence was legally insufficient (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]), and we decline to review it in the interest of justice.

Defendant contends that the sentence imposed was harsh and excessive. It is well settled that where a sentence is within the permissible statutory guidelines it will not be disturbed unless there is a clear showing that the sentencing court abused its discretion or that extraordinary circumstances exist which require a modification of the sentence (see People v Dolphy, 257 AD2d 681 [1999]; People v Parson, 209 AD2d 882 [1994]). Since the Penal Law does not permit the imposition of a suspended sentence (see People v Darling, 50 AD2d 1038 [1975]; People v Szymkiewicz, 31 AD2d 754 [1969]), the portion of defendant's sentence imposing a suspended term of imprisonment is deleted and a provision imposing an unconditional discharge is substituted in its stead. We otherwise do not find defendant's sentence to be harsh or excessive.

Accordingly, the judgment of conviction is modified by deleting the portion of the sentence imposing a suspended 10-day term of incarceration and substituting therefor a provision imposing an unconditional discharge, and is otherwise affirmed

Nicolai, P.J., LaCava and Iannacci, JJ., concur.

Decision Date: May 09, 2011

20110509

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