People v. Wienclaw

ROBERT G. BOGLE, J. The case at bar presents an issue apparently of first impression concerning the sufficiency of an accusatory instrument. Specifically, may an information be dismissed where cross-outs and corrections have occurred in a significant part of the accusatory instrument. This motion of the defendant, Theodore J. Wienclaw, is determined as hereinafter provided. The defendant is charged with parking his motor vehicle at an expired meter, a violation of section 93-59B of the Code of the Incorporated Village of Valley Stream. The violation is alleged to have occurred on East Lincoln Avenue, Village of Valley Stream, New York, at parking meter number 179. The defendant moves to dismiss the accusatory instrument based upon the ground that the information was insufficient and defective on its face, under CPL 170.30 (1) (a) and 170.35 (1) (a).

As a preliminary matter, the court notes this action is in conformity with the Criminal Procedure Law, due to the fact the CPL has been held applicable to traffic infractions (see, Vehicle and Traffic Law § 155; People v Amitrano, 59 Misc 2d 471 [Suffolk Dist Ct 1969]) as well as local municipal ordinances (People v Hacker, 76 Misc 2d 610 [Suffolk Dist Ct 1973]). Therefore all criminal statutory presumptions of the local ordinance are required to be adhered to and considered valid. (People v Chen Ye, 179 Misc 2d 592 [Crim Ct, NY County 1999].) The court has generously granted a time frame for any party that chose to submit briefs or affidavits. Since there is no timetable for filing and return of papers in the CPL, the court has taken the unprecedented step of relying on the Civil Practice Law and Rules for guidance. It has been held that under certain circumstances, where the CPL does not provide a standard by which to measure compliance with a rule, it is reasonable to refer to the CPLR (People v Duquette, 152 Misc 2d 239 [St. Lawrence County Ct 1991]). In Duquette, the court relied on the provisions of the CPLR for the timely service of notices of appeal. In another case, a court relied on the provisions of CPLR for service of a notification of request to appear before a Grand Jury. (People v Fulton, 162 Misc 2d 360 [Sup Ct, Monroe County 1994].) Therefore, although the court is not aware of any reported cases as to the use of the CPLR to determine the filing of opposing or supporting papers, in general motion practice, this court should follow the time frame under CPLR 2214 and should deem all papers to have been timely filed in accord with that rule.

Defendant contends the parking violation is defective due to the "cross-out" of one of the letters of the defendant's license plate number. The plate number is listed in the boxes on the court information as 2-3-5-4-(crossed-out N)-L-N. Based upon this error, the defendant argues the case should be dismissed. Initially, the defendant defines the parking violation to be an appearance ticket under CPL article 150. If this court were to interpret the parking violation as an appearance ticket, then the case could be dismissed for failure to file an accusatory instrument. (People v Gilberg, 166 Misc 2d 772 [App Term, 2d Dept 1995], lv denied 87 NY2d 973 [1996].) An appearance ticket is a mere invitation to go to court and does not provide the court with jurisdiction. (People v Ashkinadze, 167 Misc 2d 80 [Crim Ct, Kings County 1995].) Such failure to file an accusatory instrument would have resulted in a lack of jurisdiction his automobile. Even considering the "cross-out," the code enforcement officer has provided the correct license plate of the defendant. He is therefore fully aware of the charges against him and the court is satisfied that the elements set forth meet the due process requirements mandated by both the Federal and New York Constitutions. Accordingly, the motion of the defendant is denied.