People v. Gutirrez

Mark Oxman, Hawthorne, for defendant. Jeanine Ferris Pirro, District Attorney of Westchester County (Christine Jordan of counsel), for plaintiff.

OPINION OF THE COURT

JOHN R. LEWIS, J. Defendant was originally charged with a violation of Vehicle and Traffic Law § 511 (1), or aggravated unlicensed operation of a motor vehicle in the third degree. On December 6, 1999, at a pretrial court appearance, the People moved before the court for permission to amend the charge, "upgrading" it to Vehicle and Traffic Law § 511 (2), or aggravated unlicensed operation obviously not arraigned on such, so the original could not have been superseded. In addition, an original information is only superseded to the extent that a latter information contains the same charges. Since the People did not file a subsequent information containing any charges, the original information is not superseded at all. Case law is in accord with the above. In People v Bowman (84 NY2d 923 [1994]), the Court of Appeals held that the filing of a succeeding information did not give rise to any statutory obligation to dismiss the preceding instruments charging the same offenses, where defendant was never arraigned on the succeeding information. Similarly, in People v Gross (148 Misc 2d 232), the court noted that the superseding information would have replaced the original, had the defendant been arraigned thereon. Hence, not only does the court reject defendant's characterization of "what the Court meant" when it granted the People's motion for permission to amend the information, in addition, the above-cited statute and case law indicate that the court would not have had the power to order the vacatur of a perfectly valid information, i.e., the original, even if the court had wanted to do so. In the present case, there is no claim that the People's original information was defective, and no claim that defendant was ever arraigned on any subsequent informations. Accordingly, the original information is still in effect, and defendant's motion is denied. [*] Defendant takes the position that, in granting the People's request to be allowed to file a new information, the court ordered the People to do so. The court does not accept this characterization; rather, the court was, on motion, granting the People the right to do so, and "ordering" that they do so by a specific date, if at all.