Opinion
No. 2012–1541 K CR.
2014-06-18
The PEOPLE of the State of New York, Respondent, v. Victor BENITEZ, Appellant.
Present: PESCE, P.J., SOLOMON and ELLIOT, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William Miller, J.), rendered June 11, 2012. The judgment convicted defendant, upon his plea of guilty, of aggravated unlicensed operation of a motor vehicle in the third degree.
ORDERED that the judgment of conviction is affirmed.
On June 11, 2012, defendant pleaded guilty to aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511[1] [a] ). On appeal, defendant contends that the judgment of conviction should be reversed because so much of the accusatory instrument as charged him with aggravated unlicensed operation of a motor vehicle in the third degree is jurisdictionally defective since the factual allegations contained therein failed to provide reasonable cause to believe that he knew, or had reason to know, that he was driving with a suspended or revoked driver's license.
Whether a defendant knew, or should have known, that his New York State license or driving privilege had been suspended or revoked is an element of the offense in question (Vehicle and Traffic Law § 511[1][a] ), and the failure to allege an element of a crime in an information is a nonwaivable jurisdictional defect, reviewable on appeal even in the absence of a timely objection ( see People v. Casey, 95 N.Y.2d 354, 364 [2000] ). A challenge to the facial sufficiency of an accusatory instrument based on nonwaivable jurisdictional defects is not forfeited by a guilty plea ( see People v. Dreyden, 15 N.Y.3d 100 [2010]; People v. Kalin, 12 N.Y.3d 225 [2009]; People v. Konieczny, 2 N.Y.3d 569 [2004]; People v. Keizer, 100 N.Y.2d 114, 122 [2003] ). Therefore, defendant's contention must be reviewed by this court as a question of law ( see CPL 470.05[2] ), despite his failure to raise it in the Criminal Court ( see People v. Alejandro, 70 N.Y.2d 133 [1987] ).
In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged ( see CPL 100.15[3]; 100.40[1][c]; People v. Dumas, 68 N.Y.2d 729, 731 [1986] ). The law does not require that the most precise words or phrases which most clearly express the thought be used in an information, but only that the crime be sufficiently alleged so that the defendant can prepare himself for trial, and so that he will not be tried again for the same offense ( see People v. Dreyden, 15 N.Y.3d at 103, 905 N.Y.S.2d 542, 931 N.E.2d 526; People v. Konieczny, 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626; People v. Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233).
The factual allegations of the information in this case state that the police officer conducted a check of the official, computerized, New York State Department of Motor Vehicles' driving record relating to defendant and observed that the record indicates that defendant's license had been suspended at the time of the incident due to defendant's failure to answer or appear in response to a traffic summons. The officer further alleged that all such summonses contain the warning that, “If you don't answer this ticket by mail within 15 days your license will be suspended,” and that the “Department of Motor Vehicles mails a notice of suspension to any such person at their last known address.” We find that the foregoing allegations were sufficient, for pleading purposes, to establish prima facie the element of the charge that defendant knew, or had reason to know, that his New York State license or driving privilege had been suspended or revoked ( see Vehicle and Traffic Law § 511 [1], [2]; People v. Maldonado, 42 Misc.3d 81, 981 N.Y.S.2d 241 [App Term, 2d, 11th & 13th Jud Dists 2013]; People v. Austin, 34 Misc.3d 136[A], 2011 N.Y. Slip Op 52402[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v. Crawley, 32 Misc.3d 131[A], 2011 N.Y. Slip Op 51334[U] [App Term, 1st Dept 2011]; see also People v. Sanago, 35 Misc.3d 143[A], 2012 N.Y. Slip Op 50943 [U] [App Term, 2d, 11th & 13th Jud Dists 2012] ). Defendant's remaining arguments lack merit. Consequently, we find that so much of the accusatory instrument as charged defendant with aggravated unlicensed operation of a motor vehicle in the third degree is facially sufficient.
Accordingly, the judgment of conviction is affirmed.