|People v Tate (Stephanie)|
|2014 NY Slip Op 51587(U) [45 Misc 3d 131(A)]|
|Decided on October 29, 2014|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from a judgment of the Justice Court of the Town of Greenburgh, Westchester County (Delores Scott Brathwaite, J.), rendered March 25, 2013. The judgment convicted defendant, after a nonjury trial, of speeding.
ORDERED that the judgment of conviction is reversed, on the law and as a matter of discretion in the interest of justice, the fine, if paid, is remitted, and the matter is remitted to the Justice Court for a new trial.
On January 21, 2013, defendant was charged in a simplified traffic information with failing to obey a traffic control device in violation of Vehicle and Traffic Law § 1110 (a). A supporting deposition set forth that defendant had disobeyed a traffic control device by driving 55 miles per hour in a 30-mile-per-hour zone. Defendant pleaded not guilty, and the matter was adjourned for trial. On March 25, 2013, the day of trial, the People stated that they were going to "replace the ticket . . . for a superseding ticket" charging defendant with speeding in violation of Vehicle and Traffic Law § 1180 (d). The original simplified traffic information was "withdraw[n]," and a signed document entitled "Simplified Traffic Information," dated March 25, 2013, which charged defendant with speeding, was filed. A nonjury trial was then held that day, following which defendant was convicted of speeding.
It is well settled that a simplified traffic information can only be amended to cure amendable defects and cannot be superseded by another simplified traffic information (see CPL 100.50; People v Donnelly, 30 Misc 3d 136[A], 2010 NY Slip Op 52376[U] [App Term, 9th & 10th Jud Dists 2010]; People v Greco, 12 Misc 3d 83, 84 [App Term, 9th & 10th Jud Dists 2006]; People v Baron, 107 Misc 2d 59, 61 [App Term, 9th & 10th Jud Dists 1980]; cf. People v Nuccio, 78 NY2d 102 ). Pursuant to CPL 100.50, only informations, prosecutor's informations and misdemeanor complaints can be superseded by another information or a prosecutor's information. Moreover, a superseding information is one "charging the defendant with an offense charged in the first instrument" (CPL 100.50 ). In view of the foregoing, the simplified traffic information filed on March 25, 2013, which charges defendant with a completely different offense that has a more severe penalty, was not a superseding information. Nevertheless, the People had the authority to dismiss, or withdraw, the original information and file a new simplified traffic information charging a different offense against defendant (see e.g. People v May, 29 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2010]), which, in effect, was what was done in the case at bar.
"A defendant has the right to the aid of counsel at arraignment and at all subsequent stages of the proceedings, regardless of the gravity of the charge" (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 170.10 ), and must be informed of that right and of the right to an adjournment to obtain counsel (CPL 170.10  [a];  [a]; People v Rankel, 44 Misc 3d 134[A], 2014 NY Slip Op 51160[U] [App Term, 9th & 10th Jud Dists 2014]; People v Schonfeld, 26 Misc 3d 74, 76 [App Term, 9th & 10th Jud Dists 2009]; see also People v Ross, 67 NY2d 321, 325-326 ). Defendant was charged in the new simplified traffic information with driving 55 miles per hour in a 30-mile-per-hour zone in violation of Vehicle and Traffic Law § 1180 (d). Defendant appeared for trial without counsel, and the Justice Court did not advise defendant of her right to counsel and her right to an adjournment to obtain counsel, and did not inquire as to defendant's desire to proceed without counsel; nor did the court explain the risks and consequences of proceeding pro se (see CPL 170.10  [a];  [a]; People v Rankel, 44 Misc 3d 134[A], 2014 NY Slip Op 51160[U]; People v Raghubir, 39 Misc 3d 138[A], 2012 NY Slip Op 52476[U] [App Term, 9th & 10th Jud Dists 2010]). Such an omission, reviewed by this court as a matter of discretion in the interest of justice (see e.g. People v Ermo, 47 NY2d 863, 865 ; People v Arthur, 22 NY2d 325, 329 ), requires the reversal of the judgment of conviction and a new trial.
Accordingly, the judgment of conviction is reversed and the matter is remitted to the Justice Court for a new trial.
Iannacci, J.P., and Marano, J., concur.
Tolbert, J., taking no part.