Supporting Deposition

Should You Request a Supporting Deposition?

Whether or not to request a supporting deposition generally depends upon several factors. Did the motorist already receive one at the scene? Would it supply helpful or harmful information? Does the court enforce the criminal procedure laws on supporting depositions? And does such a request add a solid procedural defense or would it disproportionately prejudice negotiations with the issuing police officer, prosecutor, or the court (e.g., revealing a ‘roadside reduction’ was given to the motorist at the scene)?

Fortunately, this is one of those areas of procedural law in which the statute itself is clear and more readily understood if strictly followed step by step:

CPL §100.25 Simplified information; form and content; defendant’s right to supporting deposition; notice requirement.

2. A defendant charged by a simplified information [traffic ticket] is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged. To be timely, such a request must, except as otherwise provided herein and in subdivision three of this section, be made before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto. If the defendant’s request is mailed to the court, the request must be mailed within such thirty day period. Upon such a request, the court must order the complainant police officer or public servant to serve a copy of such supporting deposition upon the defendant or his attorney, within thirty days of the date such request is received by the court, or at least five days before trial, whichever is earlier, and to file such supporting deposition with the court together with proof of service thereof. . .. (Emphasis added.)

CPL §100.25(2)

On the back, or lower right-hand portion of the ticket, there may be language implying an urgency to immediately mail in your plea of either ‘guilty’ or ‘not guilty’ within 48 hours from receipt of the ticket. This 48-hour rule to mail in tickets to enter a plea in lieu of a physical appearance in court is one of those draconian rules that are generally not implemented, and its template warning should have been removed decades ago. It is fundamentally impractical and confusing and is almost universally unenforced by the courts.

Consult Rex Pietrobono for guidance on supporting depositions.

Call now for a free initial case evaluation (914) 483-5879.

Local courts require an accused to mail in their plea prior to the “return date” which is written on the ticket by the issuing officer, and typically gives two to four weeks as a deadline to timely mail in a plea. Tickets not responded to by that date may result in the recipient’s suspension by the DMV as a scofflaw depending upon the court’s compliance rules.

Conservatively speaking, a plea of not guilty and a written request for a supporting deposition should be made to the court prior to the “return date” listed on the ticket. However, technically speaking, the statute does allow for such a request to be made within thirty days following the said return date.

The CPL §100.25 statute deems such a request for a supporting deposition to be valid and timely if it is served before the end of thirty-days from the return date written on the ticket. By way of example, if an officer issued a traffic ticket on April 1 and selected a return date of May 1. You would then have 30 days from that return date to request the supporting deposition, i.e., you would technically have until May 31 to request it. Most courts accept this written request via regular first-class mail, facsimile transmission, email, or delivered to the court clerk’s office during their regular business hours.

Notwithstanding, to be abundantly cautious (i.e., avoiding timeliness arguments, mail delays, or outright lost mail, etc.) if you do decide to request a supporting deposition, it is prudent to mail your plea of not guilty and request for a supporting deposition, sufficiently prior even to the return date of May 1. This is because it is not uncommon for disagreement among justices, prosecutors, and court clerks as to the precise procedural time requirements for requests and the service of supporting deposition(s).

If your plea of ‘not guilty’ and request for a supporting deposition is timely served prior to the expiration of thirty days from the traffic ticket’s return date, upon receipt the court will then order the issuing or complainant police officer to serve a supporting deposition to the motorist (must go to the attorney if one is retained) and file a copy with the court, together with proof of service. The 30-day time limit for the officer to serve the supporting deposition commences on the date of the court’s receives the request; if the motorist has counsel, then it MUST be served upon the defendant’s attorney to be valid. The police officer must simultaneously file a copy of the supporting deposition and an affidavit of service with the court proving that they mailed the supporting deposition to the motorist or to their attorney if they have one.

Thus, in our example, a timely request for a supporting deposition if received by the court on May 31 would mean that the police officer must mail the supporting deposition to person who requested it (i.e., to ‘serve’ it) and file a copy of same with an affidavit of service on or before June 30 (weekends and holidays are included within the 30-day period). There is a ‘mailbox’ rule which deems service is performed on the date when posted (i.e., when deposited in an official U.S. Postal mailbox or with a postal carrier) and not the date upon which it is received by the recipient.

Consequently, if the supporting deposition is either served directly upon a defendant represented by counsel (instead of their counsel), is served late, is not served at all, or an affidavit of service has not been filed with the court—then the traffic ticket is rendered insufficient on its face and subject to a motion to dismiss.

Caveat: such a dismissal is technically ‘without prejudice,’ indicating that it may be re-served by the issuing police officer to the motorist—so says our highest court in the State of New York in April 2021 in People v. Epakchi, 37 NY3rd 39 (Ct App 2021). The Court of Appeals, however, did not fill-in all the logistics involved in any such re-service, but did hold that a simplified traffic information or Uniform Traffic Ticket (UTT) accompanied by a supporting deposition is the equivalent of a ‘long-form information’ and would form a valid basis for a new filing.

Thus, in conjunction with the above-referenced decision, as well as governing statutes, one might argue for the steps suggested below to as a protocol to follow should the subject of a newly filed accusatory instrument arise in a local court action:

1. served within one (1) year of the date of the alleged offense (according to one-year statute of limitations for petty offenses (CPL §30.10(d));
2. served by the law enforcement officer issuing the newly filed simplified traffic information pursuant to CPL §100.10(2);
3. by personal service (i.e., the newly filed ticket and supporting deposition cannot simply be mailed to an accused) in accordance with CPL §150.40 for an appearance ticket for a traffic infraction (other than for a parking ticket); and
4. with service of the newly filed instrument directly upon the accused—not to their attorney (because the original traffic ticket having been dismissed, that attorney’s authority to act on their client’s behalf likewise terminated). A newly filed accusatory instrument is a separate matter entirely (new index number) and must be treated as such (e.g., statute of limitations, motion time, discovery requirements, etc.). The accused may elect to proceed differently in the new matter—and until such time as an attorney has been retained, counsel in the prior matter no longer has authority to accept service on behalf of the accused (unless specifically authorized by the accused to accept any such service).

Most courts accept such written motions to dismiss ‘upon submission only;’ i.e., without requiring an appearance and oral argument be made in open court by the parties.

If a defendant or their counsel is appearing in court; customs and practices generally permit a motion to dismiss for facial insufficiency based upon a failure to timely serve a supporting deposition to be made orally. A quick review by the prosecutor and/or the presiding judge to confirm that the dates line up and that all requests were timely, the motion to dismiss is typically granted on-the-spot from the bench—often accompanied by an earnest warning to the motorist by the judge to drive more carefully.

For more information on Supporting Deposition, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 483-5879 today.