Opinion
No. 2017NY034774.
09-01-2017
The PEOPLE of the State of New York, Plaintiff, v. Kevin GILGEOURS a/k/a Kevin Andre Gilgeours El, Defendant.
Gordon Ludwig, Esq., The Legal Aid Society, New York, NY, for Defendant. A.D.A. Jennifer Bilinkas, New York County District Attorney's Office, New York, NY, for People.
Gordon Ludwig, Esq., The Legal Aid Society, New York, NY, for Defendant.
A.D.A. Jennifer Bilinkas, New York County District Attorney's Office, New York, NY, for People.
DAVID FREY, J.
The defendant was charged with one count of Criminal Possession of a Forged Instrument in the Third Degree (PL 170.20), one count of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree ( VTL 511[1] [a] ), and one count of Unlicensed Driving ( VTL 509[1] ). On August 10, 2017, the misdemeanor complaint was converted to an information by the People, at which time defense counsel informed the court that the defendant specifically directed him not to file any motions, that the defendant does not recognize this court's jurisdiction, and that nonetheless the defendant filed two affidavits that are pro se motions. This case was adjourned to October 12, 2017, for trial, and decision was reserved on the defendant's motions, which appear to be three-fold: (1) a request to dismiss this case because the court does not have jurisdiction over the defendant, (2) an action in replevin for return of his automobile and personal property, and (3) a request to dismiss the complaint as facially insufficient. On August 18, 2017, at the court's request, the People forwarded photographs of the alleged forged instruments to chambers. A copy of those photographs are annexed to this decision.
BACKGROUND
The complaining witness, a police officer, in his sworn misdemeanor information stated,
On or about June 21, 2017 at about 9:50 A.M., outside 2100 5 Avenue in the County and State of New York.... I observed the defendant driving a 1998 Toyota Minivan at the above location. I observed the defendant behind the wheel, and the engine running with keys in the ignition, on a public highway namely Fifth Avenue. I also observed the defendant was driving a car bearing a forged metal license plate. I know that the plate was forged, because it was not a genuine New York State plate, given it had no State on it, had no expiration date, and the numbers on the plate we [sic] not raises [sic] as is the case on genuine New York plates.
When I pulled the defendant over the defendant state to me that he did not have a driver's license and handed me a forged plaque which stated in substance: "State of N.Y. by Special Deputy Secretary of State, private vehicle." I knew that the plaque was forged, because it was not a genuine New York State plate, given it did not have any sort of serial number nor was there an expiration date on the document. I also observed the defendant state to me when I told him that the plate did not suffice he stated in response in substance: "I don't have to give you anything because your rules don't apply to me."
Upon vouchering the car I recovered two more forged plaques from the rear of the trunk that stated in substance: "State of N.Y. by Special Deputy Secretary of State, Trading Post." I knew that those plaques were forged because they were not genuine New York plaques, given that they did not have a serial number or any expiration date as authentic vehicle plates would. I also recovered a forged metal plate affixed to the rear of the car mentioned above. I further recovered another metal forged metal [sic] license plate from the rear of the car. I know that this plate was forged, because it was not a genuine New York State plate, given it had no State on it, had no expiration date, and the numbers on the plate we [sic] not raises [sic] as is the case on genuine New York license plates.
I conducted a computer check of the records of the New York state [sic] Department of Motor Vehicles and determined that the defendant's license was suspended and had not been reinstated. I knew that the defendant knew his license was suspended because his license was suspended for failure to answer a New York State Important Notice Regarding Your Driving Privileges and Your Failure to Pay Child Support, and all such notices have printed on them "we will notify the Department of Motor Vehicles to suspend your driving privileges unless you take one or more of the following actions within forty-five days from the date of this notice" The suspension occurs automatically (by computer) sixty days after the Notice is mailed, if the necessary steps are not taken.
The defendant filed two affidavits with the court. The first, dated, July 6, 2017, in sum and substance declares that his full name is Kevin Andre Gilgeours El, he is not a United States citizen, but instead is a member of The Moorish National Republic Federal Government, and he has declared that he will exercise his inherent and unalienable rights to use any usual conveyance of his choice—including by automobile—without being accosted by anyone demanding he have a commercial driver's license or permit. Moreover, he has declared that no state agency or agent may exercise their domain over him without him having specifically entered into a contract with these agencies. The second affidavit, dated July 12, 2017, in effect confirms everything in the information in impressive detail. Defendant admitted that he does not have a driver's license, and did not register the minivan. He states the plaques taken from him are placards declaring his right to travel freely, which he had filed and recorded with several local and state agencies. He claims that because he was not traveling for business purposes, he does not need the "privileges of the driver's License, car, registration, inspection, insurance as one is not needed for travel on the American soil" (Defendant's Affidavit, dated July 12 2017, p. 2). He further demands that his car and all the personal property contained in the car be returned to him immediately. In sum, this court has read the affidavits as motions: (1) to dismiss this case because the court does not have jurisdiction over the defendant, (2) for an action in replevin for return of his automobile, and (3) to dismiss the complaint as facially insufficient.
COURT'S JURISDICTION
The defendant's claim that as a Moorish National he is not subject to the court's jurisdiction is not unique. But it is well-settled law, both in the New York State and Federal courts, that courts in the United States have jurisdiction even over persons of foreign nationality who commit crimes in the United States. This includes people born in the United States who claim that they are excluded from federal, state, and local laws. Douce v. City of NY, 2014 WL 7231802 (S.Ct. Bronx Co.2014) ; Allah El v. Distr. Atty. for Bronx Co., 2009 WL 3756331 (S.D.NY 2009) ; Rey v. Bailey, 2010 WL 1531172 (S.D.NY 2010). See also, N.Y. Const., art. VI, § 15 (c); NY City Crim. Ct. Act § 31 ; CPL 10.30 and CPL Art. 100. Thus, the defendant's motion to dismiss this case for lack of jurisdiction is denied.
REPLEVIN
While defendant does not recognize this court's jurisdiction, he nonetheless requests that the court exercise its jurisdiction to order the police to return the property they seized during his arrest. But, while this court does have jurisdiction over the criminal case against the defendant, it does not have jurisdiction to order the police to return his seized property in this case. The property was not seized by search warrant ( CPL 710.70[1] ), thus defendant's sole remedy is for a release pursuant to Administrative Code 14–140(c) or Rules of the City of New York (38 RCNY 12–B). People v. Sash, 194 Misc.2d 195 (N.Y.C.Crim. Ct. N.Y. Co.2002). See also, Camacho v. Kelly, 57 AD3d 297 (1st Dep't 2008) (writ of mandamus lies after a criminal prosecution ends).
FACIAL SUFFICIENCY
Criminal Procedure Law (CPL) 100.40(1) states that an information is sufficient on its face when it substantially conforms with CPL 100.15 ; the allegations provide reasonable cause to believe that the defendant committed the offense charged; and the non-hearsay allegations in conjunction with any supporting deposition establish, if true, every element of the offenses charged and the defendant's commission thereof. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v. Casey, 95 N.Y.2d 354, 360 [2000] ). The standard for facial sufficiency and the People's burden of proof at trial are thus markedly different.
"Reasonable cause" is defined by CPL 70.10(2).
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The People have alleged that defendant was driving without a license, and doing so while he knew his license was revoked. Those allegations are properly pled and converted, and the People served and filed a New York State Department of Motor Vehicles (DMV) abstract and proof of mailing. The only issue before the court is whether the five plaques and metal plates seized from the defendant are forged instruments within the meaning of PL Art. 170.
The plaques referred to in the complaint read, "Country: Maghrib Al Aqsa, Moorish National Republic Federal Government, Trading Post, Reserving and Retaining All Rights. State of New York, Department of State [NYS Dep't of State seal]. By Special Deputy Secretary of State, State of New York, No. NYC–752298, No. NYC–75297." The metal plate attached to the car read, "Moorish National Republic Federal Government, AA222141, Allodial National, Property of the Moorish Consular Post 1886–A." With respect to the plaque, the complaint alleged that the defendant turned it over to the police officer in lieu of a license. This plaque contains a copy of the New York State Secretary of State's seal, and has the words, "By Special Deputy Secretary of State, State of New York." The plaque alleges to have been issued by a government agency and was used by the defendant in an attempt to fool a police officer into thinking it was a state-issued document that allows him to drive. The pleading is therefore sufficient to sustain the criminal possession of a forged instrument in the third degree, and would have even sustained a felony count of criminal possession of a forged instrument in the second degree if that had been charged as well.
The metal plates attached to the car contained the words "Moorish Consular Post," and thus allege to have been issued to a foreign consul. But, the country "Maghrib Al Aqsa" and the government "Moorish National Republic Federal Government" are neither recognized by the United States nor the United Nations (see, www.usembassy.gov [list of embassies, consulates, and diplomatic missions recognized by the United States] and www.un.org/en/member-states [list of U.N. member states] ). Moreover, there is a very specific method to obtain motor vehicle registration and drivers licenses for recognized foreign diplomats and officials residing in the United States. And, once a qualified individual or government takes the proper steps to obtain consular license plates, those plates and drivers licenses are issued by the United States Department of State's Office of Foreign Missions (OFM), have specific symbols and words embossed on them, and are still subject to United States and New York law (see, e.g., www.state.gov/ofm/ro/ny/index.htm [contact information to obtain foreign vehicle registration and license]; www.state.gov/ofm/resource/22836.htm [New York's Consular Parking Program rules and regulations]; www.state.gov/documents/organization/271106.pdf [Samples of OFM driver's licenses for Law Enforcement]; www.state.gov/documents/organization/109866.pdf [Sample of diplomat license plates for Law Enforcement]; www.state.gov/documents/organization/125027.pdf [process for obtaining consular license plates] ). Although the defendant's plates allege to be consular plates, they are not, and therefore the pleading is sufficient to sustain the criminal possession of a forged instrument in the third degree charge (and, again, would have even sustained a felony criminal possession of a forged instrument in the second degree count, if that had been charged as well).
CONCLUSION
The defendant's motions are denied. Both sides should be ready to try this case on October 12, 2017.