Opinion
Docket No. CR-008011-23QN
01-08-2024
The People of the State of New York v. Rowe, Defendant.
For the People: Melinda Katz, District Attorney of Queens County (by Abigail Neuviller) For Rowe: The Legal Aid Society (by Laura Eraso)
For the People: Melinda Katz, District Attorney of Queens County (by Abigail Neuviller)
For Rowe: The Legal Aid Society (by Laura Eraso)
Wanda L. Licitra, J.
Pending before the court is a C.P.L. § 30.30 motion to dismiss. Amongst other arguments, the motion alleges that the People have never filed a facially sufficient information, a prerequisite to their readiness. Upon considering all the papers submitted, the court agrees. The motion is granted.
LEGAL ANALYSIS
Where, as here, an information's top count is a misdemeanor punishable by 364 days in jail, the People have ninety days from commencing their case to validly state ready for trial. To validly state ready for trial, the People must first file a facially sufficient information. (People v. Colon, 59 N.Y.2d 921 [1983]; People v. Maslowski, 187 A.D.3d 1211 [2d Dep't 2020]; People v. Sosa, 71 Misc.3d 140 [A] [App. Term, 2d Dep't 2021]).
An information is facially sufficient only if it contains non-hearsay evidentiary factual allegations that, if true, establish "every element" of the charged offense. (People v. Rodriguez, 214 A.D.3d 908, 908 [2d Dep't 2023]; see also C.P.L. §§ 100.40[1][c]; 100.15[3]). This standard is called a "prima facie" case. (People v. Alejandro, 70 N.Y.2d 133, 138 [1987]). The prima-facie standard is "necessary because of the 'unique function that an information serves'" under our criminal procedure law. (People v. Parsons, 69 Misc.3d 11, 14 [App. Term, 1st Dep't 2020] [quoting Alejandro, 70 N.Y.2d at 137]). Unlike an indictment, which requires support "by legally sufficient evidence before a Grand Jury," an information is an accusatory instrument for which the People "need not, at any time prior to trial, present actual evidence." (Alejandro, 70 N.Y.2d at 137-38 [internal citations omitted]).
The law does not require that an information contain the most precise words that most clearly express the alleged narrative. So long as the factual allegations "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. Sanson, 59 Misc.3d 4, 6 [App. Term, 2d Dep't 2018] [internal quotation marks omitted]).
The information in this case charges one count: third-degree criminal possession of a forged instrument, P.L. § 170.20. In full, the information alleges that,
Deponent [Police Officer Molly Pettus] states that on [March 21, 2023, at about 5:48 p.m., at the intersection of Springfield Boulevard and Merrick Boulevard], she observed the defendant,... Rowe, operating a motor vehicle, to wit, a white 2013 Buick, bearing a forged temporary Georgia license plate, plate number S14154831, traveling southbound on Springfield Boulevard.
Deponent further states that upon request, the defendant was unable to produce valid registration or insurance for the above-mentioned vehicle.
Deponent further states that she was [sic] recovered the above-mentioned forged temporary Georgia license plate, plate number S1454831 from the rear of the above-mentioned vehicle.
Deponent further states that she obtained and reviewed a teletype printout from ZFINEST, a database maintained by the New York Police Department, and whose records are made in the regular course of said business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, and that said records showed no record of the above-mentioned temporary Georgia license plate number S1454831.
Deponent further states that her conclusion that the above-mentioned temporary Georgia license plate, plate number S1454831, is forged is based upon her training in the detection and identification of forged instruments, that the above-mentioned computer check revealed no record of the above-mentioned temporary Georgia license plate number S1454831, that there is no gold security seal on the right side behind the expiration date, whereas a legitimate temporary Georgia license plate would have a gold security seal on the right side behind the expiration date, that the expiration date on the above-mentioned temporary Georgia license plate has the letters "APR" capitalized whereas, [sic] a legitimate temporary Georgia license plate would only have the first letter of the month capitalized, that the vehicle color on the above-mentioned temporary Georgia license plate is listed twice as "WHI, WHI," whereas a legitimate temporary Georgia license plate would only have the color listed one time, and that the above-mentioned temporary Georgia license plate was laminated, whereas a legitimate temporary Georgia license plate would be printed on unlaminated thick cardstock.(Information at 1-2).
A person violates P.L. § 170.20 when, "with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument." Thus, "[a]n essential element of the offense of criminal possession of a forged instrument is knowledge by the defendant that the instrument is forged." (People v. Johnson, 65 N.Y.2d 556, 560 [1985] [making the point about second-degree criminal possession of a forged instrument]). Some states presume, as a legal matter, that a person knows an instrument is forged simply from "the mere unexplained possession or negotiation" of the instrument. (Id.). But not in New York-our statutes reject that approach. (Id. at 561). Here, "[t]he mere negotiation or utterance of a forged instrument cannot, of itself, establish a presumption that defendant had knowledge of the forged nature of the instrument." (Id.).
People v. Rodriguez, a case from the Appellate Division, Second Department, provides a prototypical example of an information that does not establish the element of knowledge. (214 A.D.3d 908 [2d Dep't 2023]). There, an information alleged that a person "owned and operated" a vehicle, that a "forged Texas buy tag" was affixed to that vehicle, and that the officer "concluded the tag was forged" based on his "training in the detection and identification of forged instruments." (214 A.D.3d at 909). He also noted that upon checking "Z-finest," the records showed that the "forged instrument [was] not associated with any vehicle." (Id. [internal quotation marks omitted]).
The Appellate Division, Second Department, found these allegations facially insufficient to establish that "the defendant had knowledge of the forged nature of the instrument." (Id. at 910 [internal quotation marks omitted]). It reiterated the New York rule that "'[t]he mere negotiation or utterance of a forged instrument cannot, of itself, establish a presumption that defendant had knowledge of the forged nature of the instrument.'" (Id. at 909 [quoting Johnson, 65 N.Y.2d at 561]).
Aside from mere negotiation or utterance, there must be some "conduct and events" from which knowledge could be inferred. (See People v. Mbaye, 51 Misc.3d 142 [A], at *1 [App. Term, 1st Dep't 2016]). People v. Cerda provides an example. (61 Misc.3d 131[A], at *1 [App. Term, 1st Dep't 2018]). There, the First Department's Appellate Term held that a person's knowledge was properly inferred "from his conflicting explanations and the suspicious circumstances under which he came into possession of [a temporary license] plate." (Id.).
Here, the People ground their circumstantial prima-facie case of knowledge in Mr. Rowe's failure "to produce valid registration or insurance." Various unpublished decisions from this county have not adopted that reasoning. (See, e.g., People v. Devontai Carlie, CR-021557-19QN [Crim. Ct., Queens County Feb. 3, 2020] [Hartman, J.] [in which the driver was "unable to produce a valid driver's license or valid registration for the vehicle"]; People v. Vincent Udom, CR-023910-18QN [Crim. Ct., Queens County Aug. 13, 2019] [Watters, S.J.] [in which the driver was unable to "provide a valid registration or valid proof of insurance" for the vehicle]). However, the People rely on a Brooklyn trial-court case from 1998, People v. Stephens, 177 Misc.2d 819 [Crim. Ct., Kings County 1998]. There, the court held that it could infer an unlicensed driver knew his license plate was forged from his inability to produce proper registration and insurance. This court disagrees with Stephens and nonetheless finds its reasoning distinguishable from this case.
The rationale in Stephens goes like this. The Vehicle and Traffic Law requires "proof, on demand, of proper registration and insurance." (Stephens, 177 Misc.2d at 824). It also requires that drivers be duly licensed. (Id.). Thus, the "inability to present [these] documents," together with the "disregard of the law's requirement to be properly licensed," constitutes a circumstantial prima-facie case that a person knows their plate is forged. (Id.). In other words, if someone knowingly violates the law's requirements in some respects, then they are likely knowingly violating it in others, as well. (See id.).
This court does not find such generic reasoning strong enough to establish a prima-facie case. To be sure, the failure to produce other vehicle-related documents may be relevant to establishing that a person knows their license plate is forged. It is fair to say that these facts may make the other more likely. But the facial sufficiency of an information demands more than mere relevant allegations-it requires a prima-facie case. Of course, a prima-facie case does not require proof beyond a reasonable doubt. But it is a "' much more demanding standard '" than simply alleging relevant allegations. (See Alejandro, 70 N.Y.2d at 138 [quoting and emphasizing 1968 Report of Temp. Comm. on Rev. of Penal Law and Crim. Code, Intro. Comments]).
Even setting aside this court's disagreement with Stephens, though, the rationale in that case does not apply here. There is no allegation that Mr. Rowe owned the vehicle in question. As another case, People v. Roa, pointed out when analyzing Stephens, the Vehicle and Traffic Law "imposes obligations" to maintain proper registration and insurance on the" owner of the vehicle." (8 Misc.3d 333, 336 [Crim. Ct., NY County 2005] [emphasis added]). "However, equivalent obligations are not cast upon the driver." (Id.). "It is not reasonable to infer... based on the regulatory scheme laid out in the Vehicle and Traffic Law that prohibits an owner from operating a motor vehicle without proper registration, that a driver, who exercises dominion and control of the vehicle, knows [its out-of-state license plate] was forged." (Id.).
Nor is there any allegation here that Mr. Rowe operated the vehicle without being duly licensed. In such a case, the Stephens reasoning may also apply to the driver-that a person who knowingly drives in violation of one law may know that they are driving in violation of another. But unlike in Stephens, there is no such reasoning here that would apply to the driver.
Rather, "[i]n this case, the People must allege additional facts to show that the defendant had knowledge that the [plate] was forged." (Id.). "This is especially so where the forgery is not such as to be readily apparent to an average citizen." (Id.). There is nothing about the license plate in this case that would suggest that an average person would know it was forged. The differences between the plate in this case and a genuine plate, as alleged, are idiosyncratic and specific to Georgia-the placing and color of a seal, the capitalization of letters, the stylization of vehicle color. While an officer with specialized "training in the detection and identification of forged instruments" might recognize such errors, (see Information at 2), there is no reason an average driver in New York would as well, (see People v. Bankston, 61 Misc.3d 669, 674 [Crim. Ct., NY County 2018] ["However, when the difference between a forged instrument and a genuine instrument is not readily apparent to a layperson, guilty knowledge may not be inferred unless the People allege additional facts."]; People v. Hellwig, 18 Misc.3d 1143 [A], at *1 [Crim. Ct., NY County 2008] [Kennedy, J.] [stating the same]).
The People's information is facially insufficient and, as a result, they never validly stated ready for trial in this case. The People commenced the case on March 22, 2023. It is the People's burden to prove that any of the time between then and now "should be excluded" and to provide the necessary evidence to substantiate their claims. (E.g., People v. Wearen, 98 A.D.3d 535, 537 [2d Dep't 2012]; People v. Reinhardt, 193 A.D.2d 1122, 1122 [4th Dep't 1993]). Here, the People properly assert that on August 7, 2023, the defense requested a motion schedule, tolling the C.P.L. § 30.30 clock. (See C.P.L. § 30.30[4][a]).
Accordingly, the People are responsible for delay from March 22, 2023, to August 7, 2023. That is 138 days. Because that is more than the ninety days the People are allowed, the case must be dismissed. (C.P.L. § 30.30[1][b]).
Any remaining issues are moot.
The foregoing constitutes the order and decision of the court.