Opinion
Docket No. CR-001312-23KN
10-03-2023
The People of the State of New York v. John Stephens, Defendant.
Eric Gonzalez, District Attorney, Maxine Wiesenfeld, Assistant District Attorney. Lazzaro Law Firm, P.C., James Kirshner, Esq., of counsel for the Defendant.
Unpublished Opinion
Eric Gonzalez, District Attorney, Maxine Wiesenfeld, Assistant District Attorney.
Lazzaro Law Firm, P.C., James Kirshner, Esq., of counsel for the Defendant.
Patrick Hayes Torres, J.
Defendant was charged with Penal Law §220. 03 Criminal Possession of a Controlled Substance in the Seventh Degree, Vehicle and Traffic Law §511 (1) (A) Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree and various other charges. Defendant challenges the accusatory instrument as facially insufficient under Criminal Procedure Law ("CPL") §§170.30 (1) (a) and 100.40. Defendant further challenges the People's Statement of Readiness as invalid under CPL §§100.15, 100.40 and 30.30 (5-a).
For the reasons set forth below, the defendant's motion is denied.
PROCEDURAL HISTORY
On January 12, 2023, defendant was arraigned and charged with one count each of Penal Law 220.16 (1) Criminal Possession of a Controlled Substance in the Third Degree; Vehicle and Traffic Law §375 (12-a) (b) (2) Improper Coating of Side Windows; Penal Law §220. 03 Criminal Possession of a Controlled Substance in the Seventh Degree; Vehicle and Traffic Law §511 (1) (a) Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree; and Vehicle and Traffic Law § 509 (1). The case was then adjourned to May 16, 2023.
The charge of Penal Law 220.16 (1) Criminal Possession of a Controlled Substance in the Third Degree is a Class B Felony which has a six month or 180-day speedy trial time. See CPL §30.30 (1) (a).
On May 16, 2023, the 124th day of the People's 180 days of speedy trial time, all felony counts were dismissed, and the case was adjourned to July 12, 2023.
On July 11, 2023, the 179th day since defendant's arraignment the People served and filed a Superseding Information. Attached to the superseding information was a copy of a certification issued by the Certified Document Center of the State of New York Department of Motor Vehicles dated April 23, 2023 and Abstract of Driving Record for defendant, which stated in relevant part that the driver's license was revoked on June 7, 2018, for driving while impaired.
On August 17, 2023 defendant filed their motion to dismiss alleging that the charge of Vehicle Traffic Law §511(1) (a) Aggravated Unlicensed Operation of a Motor Vehicle in the Third-Degree was not facially sufficient.
The superseding accusatory instrument charged defendant with the commission of the charge on January 11, 2023, at approximately 3:40 PM at Stagg and Lorimer Street, Brooklyn, New York in relevant part under the following circumstances:
the deponent is informed by the signed, sworn statement of police officer [JBGS], that, at the above time and place, which is a public street, officer [JBGS] observed the defendant in the driver's seat of a Gray 2017 Nissan Maxima, bearing Pennsylvania license plate no. LNG1162, with excessively tinted windows, parked near a fire hydrant, with the engine of the vehicle running.
Deponent is further informed by signed, sworn statement of police officer [JBGS] that officer [JBGS] did conduct a traffic stop of defendant's vehicle and a check of the official computerized department of motor vehicle driving record(s) (pursuant to VTL 201) relating to defendant.
Deponent is further informed by signed, sworn statement of police officer [JBGS] that officer [JBGS] observed said record(s) to indicate that at the above time defendant was driving with his privilege to do so having been revoked in the State of New York
Deponent is further informed by the signed, sworn statement of officer [JBGS] that officer [JBGS]' basis for believing that the defendant had reason to know that his license was revoked is as follows: the above-described New York State's Department of Motor Vehicles computer check revealed that defendant's license was suspended for driving while impaired.
Deponent is further informed by the signed, sworn statement of officer [JBGS] that the New York State Department of Motor Vehicles mails a notice of revocation to any such person at their last known address.
The requirement that an accusatory instrument contain nonconclusory allegations is part of the prima facie case requirement. People v Jackson, 18 N.Y.3d 738, 746 (2012) . The requirement of a prima facie case does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, (1986). The factual allegation within the complaint is required to allege "facts of an evidentiary character (CPL §100.15[3]) demonstrating 'reasonable cause' to believe the defendant committed the crime charged." See CPL 100.40 (4) (b), 100.40 (1) (b) (c); People v. Dreyden 15 N.Y.3d 100, 102 (2010); People v Torres 63 Misc.3d 164 (A) (App Term, New York 2019); People v. Maldonado 42 Misc.3d 81 (App. Term 2nd Dept, 2nd, 11 & 13 judicial districts 2013).
A court reviewing an accusatory instrument for facial sufficiency must assume that the factual allegations are true and "in most cases the basis for such an allegation can be discerned by drawing reasonable inferences from all the facts in the accusatory instrument." People v Jackson, 18 N.Y.3d 738, 747 (2012), People v Casey, 95 N.Y.2d 354, 360 (2000). An Accusatory instrument is facially sufficient "[s]o 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" (People v Konieczny, 2 N.Y.3d 569, 575, [2004] quoting People v Casey. 95 N.Y.2d 354, 360 [2000]).
A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree when such person operates a motor vehicle upon a public highway while knowing or having reason to know that such person's license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner. Vehicle and Traffic Law §511 (1) (a) Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree.
Contrary to defendant's contention the accusatory instrument includes the factual allegation that defendant had knowledge or reason to know that his driver license was suspended or revoked due to his suspension for driving while impaired. Moreover, the accusatory instrument also includes the allegation that the New York State Department of Motor Vehicles mails a notice of revocation to any such person at their last known address. This factual allegation was absent in People v Neal 69 Misc.3d 148 (A) (App Term 1st Dept 2020) and thus that Court found the accusatory instrument not facially sufficient. Unlike in Neal in this case, the allegations were present in the accusatory instrument.
Moreover, the defendant contends that the People were required to show that defendant had knowledge of his revocation and that defendant received notice of his revocation to be facially sufficient. This Court disagrees. For an accusatory instrument to be facially sufficient "facts of an evidentiary character (CPL §100.15[3]) must be alleged to demonstrate 'reasonable cause' to believe the defendant committed the crime charged. People v. Dreyden 15 N.Y.3d 100, 102 (2010). At trial the People would have to prove beyond a reasonable doubt that defendant knew or should have known that his driving privilege was revoked. See People v. Maldonado 42 Misc.3d 81 (App. Term 2nd Dept, 2nd, 11 & 13 Judicial Districts 2013).
The factual allegations in the complaint state that the police officer JBGS" observed the defendant in the driver's seat of a Gray 2017 Nissan Maxima with the engine of the vehicle running." and upon a search of the official computer check of the Department of Motor vehicles the search revealed that defendant's privilege to drive had been "revoked in the State of New York" on January 11, 2023. Officer JBGS' basis for believing that defendant had reason to know his license was revoked was due to the "NYS Department of Motor Vehicle check revealed defendant's license was suspended for driving while impaired." Finally, Officer JBGS stated that" New York State Department of Motor Vehicles mails a notice of revocation to any such person at their last known address."
The factual allegation in the accusatory instrument was sufficient to establish the element of the charge that defendant knew or should have known that his New York State driving privileged had been revoked or suspended. The factual allegation provided defendant with notice sufficient to prepare a defense and is adequately detailed to prevent a defendant from being tried twice for the same offense. See People v Park, 66 Misc.3d 152(A) (App. Term 1st Department 2020); People v Torres 63 Misc.3d 164(A) (NY Sup. App. Term, New York 2019); People v. Maldonado 42 Misc.3d 81 (App. Term 2nd Dept, 2nd, 11 & 13 Judicial Districts 2013); People v Benitez 44 Misc.3d 129(A) (App Term 2nd Dept., 2nd, 11th, and 13th Judicial Districts 2014).
The People filed a valid statement of readiness since the accusatory instrument is facially sufficient. In order for a statement of readiness to be valid the prosecuting attorney must certify that all counts charged in the accusatory instrument meet the requirements of CPL § 100.15 and CPL §100.40 and those counts not meeting the requirements of CPL § 100.15 and CPL §100.40 have been dismissed" (CPL § 30.30 [5-a]; People v Matos 78 Misc.3d 322 (Crim Ct. Kings Cty. 2023); People v. Herrera, 73 Misc.3d 334 (Crim Ct. Bx. Cty. 2021); People v. Mueller, 78 Misc.3d 1206(A) (Crim Ct. NY Cty. 2023). The plain language of CPL § 30.30(5-a) mandates that a statement of readiness must be filed by the prosecutor certifying that all the remaining charges in the accusatory instrument are facially sufficient and that any charges that were not sufficient were dismissed.
The Supplementary Practice Commentary to CPL § 30.30 (5-a) by William Donnino suggest that CPL §3030 (5-a) was added to abrogate the practice of partial conversion, whereby some counts of an accusatory instrument have been deemed converted, while at the same time leaving other existing counts unconverted on the same accusatory instrument . People v. Mueller 78 Misc.3d 1206(A) (Crim Ct. NY Cty. 2023); People v Matos 78 Misc.3d 322 (Crim Ct. Kings Cty. 2023); People v. Young 72 Misc.3d 1203(A) (Crim CT. NY. Cty. 2021). Thus, any remaining charge that was not facially sufficient could render the People's statement of readiness invalid. Here, Aggravated Operation of a Motor Vehicle in the Third Degree, Vehicle Traffic Law 511(1)(a), is facially sufficient. Consequently, the statement of readiness was valid.
Lastly, the People had not exceeded speedy trial. On May 16, 2023, the People dismissed the felony charges, and the case was reduced to misdemeanor charges. There had been 124 days that elapsed from the date of commencement of the felony criminal action (January 12, 2023) to the reduction to misdemeanor complaint (May 16, 2023). To calculate speedy trial time, two time periods need to be calculated. First being the time that elapsed from the felony complaint to a misdemeanor which was 124 days. Second, the time allocated from the top charge on the new misdemeanor complaint which is 90 days. If the total of the two periods exceeds 6 months, the applicable time period remains six months See CPL §30.30(7)(c).
Therefore, the People had 180 days (or until July 12, 2023) to file a valid certificate of compliance as required by CPL §30.30 (7) (c); 30.30 (1) (a). Thus, the People had not exceeded their speedy trial limitation of 180 days.
Accordingly, defendant's motion is denied in its entirety.
The foregoing constitutes the opinion, decision, and order of the Court.