The People of the State of New York, Respondent, v. Nusen Klein, Appellant. (2024)

ORDERED that the judgment of conviction is reversed, on the law, the order denying defendant's motion to dismiss the simplified traffic information is vacated, defendant's motion is granted, and the fine, if paid, is remitted.

Defendant was charged in a simplified traffic information with using a mobile telephone while operating a motor vehicle while the vehicle was in motion (Vehicle and Traffic Law § 1225-c [2] [a]). Defendant subsequently moved to dismiss the simplified traffic information as being facially insufficient. In an order dated July 13, 2023, the Justice Court denied defendant's motion. Following a nonjury trial, in a decision dated September 14, 2023, defendant was convicted of the charge and sentence was imposed.

The record demonstrates that defense counsel, on behalf of defendant, executed a stipulation whereby it was agreed that, since the recording of the trial could not be transcribed due to too much background noise, and since the parties agreed with the recitation of the trial testimony contained in the court's September 14, 2023 decision, wherein the Justice Court found defendant guilty, that decision would take the place of a transcript for all purposes, including as the factual record of the trial. Thus, having entered into this stipulation, defendant cannot now complain that the Justice Court failed to provide a transcript of the trial testimony.

A simplified traffic information is sufficient on its face when it substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25 [1]; 100.40 [2]; People v Ramos, 77 Misc 3d 132[A], 2022 NY Slip Op 51243[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Ferro, 22 Misc 3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). Additionally, pursuant to CPL 100.25 (2), if a supporting deposition of a complainant police officer is provided, it must contain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense charged (see People v Hohmeyer, 70 NY2d 41, 42-44 [1987]; People v Key, 45 NY2d 111, 116-117 [1978]; People v Anand, 65 Misc 3d 151[A], 2019 NY Slip Op 51875[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Delprete, 62 Misc 3d 128[A], 2018 NY Slip Op 51872[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Here, since, prior to trial, defendant moved to dismiss the simplified traffic information on facial insufficiency grounds, the issue of whether the supporting deposition contained adequate factual allegations to support the simplified traffic information was not waived (see CPL 170.30 [3]; People v Beattie, 80 NY2d 840 [1992]; Key, 45 NY2d at 116-117; Anand, 2019 NY Slip Op 51875[U]; Delprete, 2018 NY Slip Op 51872[U]).

Vehicle and Traffic Law § 1225-c (2) (a) provides that "no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion . . . ." For purposes of the statute, "[u]sing" a mobile telephone means "holding a mobile telephone to, or in the immediate proximity of, the user's ear" (Vehicle and Traffic Law § 1225-c [1] [c] [i]), and "[e]ngage in a call" means "talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone" (Vehicle and Traffic Law § 1225-c [1] [f]). Moreover, Vehicle and Traffic Law § 1225-c (2) (b) provides:

"An operator of any motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section [,] . . . [and t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call."

Here, as correctly contended by defendant, the supporting deposition failed to set forth any facts providing reasonable cause to believe that he had violated Vehicle and Traffic Law § 1225-c (2) (a) (see CPL 70.10 [2]; 100.25 [2]; Anand, 2019 NY Slip Op 51875[U]; Delprete, 2018 NY Slip Op 51872[U]; People v Bollag, 42 Misc 3d 149[A], 2014 NY Slip Op 50407[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; cf. Ramos, 2022 NY Slip Op 51243[U]; People v Ermmarino, 60 Misc 3d 50, 52, 55 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]), as the complaining officer alleged no facts describing how defendant was "using" the cell phone, such as by stating how or where defendant was holding it (Vehicle and Traffic Law § 1225-c [1] [c] [i]), or otherwise state that he had knowledge that defendant was actually engaged in a call (Vehicle and Traffic Law § 1225-c [1] [f]). Consequently, the simplified traffic information was insufficient on its face (see CPL 100.25 [2]; 100.40 [2]) and should have been dismissed upon defendant's motion (see Delprete, 2018 NY Slip Op 51872[U]).

Accordingly, the judgment of conviction is reversed, the order denying defendant's motion to dismiss the simplified traffic information is vacated, and defendant's motion is granted.

GARGUILO, P.J., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: November 14, 2024