Opinion
2019-1832 W CR
03-10-2022
The PEOPLE of the State of New York, Respondent, v. Djion BENTLEY, Appellant.
John P. Savoca, for appellant. Westchester County District Attorney (William C. Milaccio and Brian R. Pouliot of counsel), for respondent.
John P. Savoca, for appellant.
Westchester County District Attorney (William C. Milaccio and Brian R. Pouliot of counsel), for respondent.
PRESENT: JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ.
ORDERED that so much of the appeal as is from the judgment convicting defendant of unlawful possession of marihuana is dismissed as academic; and it is further,
ORDERED that the judgment convicting defendant of aggravated unlicensed operation of a motor vehicle in the third degree is reversed, on the facts, and the accusatory instrument charging that offense is dismissed; and it is further,
ORDERED that the judgments convicting defendant of two charges of resisting arrest, failing to comply with a lawful order or direction of a police officer regulating traffic and leaving a motor vehicle unattended, respectively, are affirmed.
Insofar as is relevant to this appeal, defendant was charged, in seven separate accusatory instruments, with two charges of resisting arrest ( Penal Law § 205.30 ), two charges of aggravated unlicensed operation of a motor vehicle in the third degree ( Vehicle and Traffic Law § 511 [1] [a] ), and one charge each of failing to comply with a lawful order or direction of a police officer regulating traffic ( Vehicle and Traffic Law § 1102 ), leaving a motor vehicle unattended ( Vehicle and Traffic Law § 1210 [a] ), and unlawful possession of marihuana ( Penal Law § 221.05 ). Specifically, the charges of failing to comply with a lawful order or direction of a police officer regulating traffic, leaving a motor vehicle unattended and one charge each of resisting arrest and aggravated unlicensed operation of a motor vehicle in the third degree arose from an incident occurring on March 28, 2018, in which defendant allegedly left his vehicle unattended on a public street, fled the scene in his vehicle despite the police's order not to move his vehicle and resisted his subsequent arrest. The charges of unlawful possession of marihuana and the other charge of resisting arrest arose from an incident occurring on November 8, 2018, in which defendant was allegedly observed smoking marihuana in public and resisted his subsequent arrest. The other charge of aggravated unlicensed operation of a motor vehicle in the third degree arose from an incident occurring on December 1, 2018, in which defendant was allegedly observed operating his vehicle on a public highway with a suspended license. Following a jury trial, defendant was found guilty of all of the charges. At sentencing, the Justice Court granted the branch of defendant's CPL 330.30 motion seeking to set aside his conviction of the charge of aggravated unlicensed operation of a motor vehicle in the third degree relating to the March 28, 2018 incident.
Upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one appellate review of adverse factual findings" ( People v Danielson , 9 NY3d 342, 348 [2007] ; see People v Joyner , 126 AD3d 1002, 1005 [2015] ). "If a finding in favor of the defendant would not have been unreasonable, then this Court ‘must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions’ " ( People v Curry , 112 AD3d 843, 844 [2013], quoting Danielson , 9 NY3d at 348 ). Nonetheless, great deference is accorded to the jury's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane , 7 NY3d 888, 890 [2006] ; People v Bleakley , 69 NY2d 490, 495 [1987] ). However, if it appears that the jury failed to give the evidence the weight it should be accorded, this court may reverse the judgment of conviction and dismiss the accusatory instrument (see CPL 470.20 [5] ; People v Romero , 7 NY3d 633, 643-644 [2006] ; People v Mateo , 2 NY3d 383, 410 [2004] ).
We find that defendant's conviction of aggravated unlicensed operation of a motor vehicle in the third degree related to the December 1, 2018 incident was against the weight of the evidence. Vehicle and Traffic Law § 511 (1) (a) provides that "[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." In order to support a conviction of aggravated unlicensed operation of a motor vehicle in the third degree, the People must establish that the defendant knew, or had reason to know, that his or her license or privilege of driving had been suspended, revoked or otherwise withdrawn (see Vehicle and Traffic Law § 511 [1] [a] ; People v Francis , 114 AD3d 699, 700 [2014] ; People v Flores , 70 Misc 3d 142[A], 2021 NY Slip Op 50154[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).
At the trial, to establish that defendant knew or had reason to know that his license had been suspended at the time of the incident, the People sought to prove, mainly through defendant's own testimony, that defendant had received a prior traffic summons in the Town of Cortlandt, that defendant knew that he had failed to timely pay that traffic summons, and that defendant should have known at the time of the incident that his license had been suspended as a result of his failure to pay. However, defendant testified that he believed at the time of the December 1, 2018 incident that his license was valid. While defendant acknowledged that he had previously been issued a traffic summons in the Town of Cortlandt and had failed to pay the summons on time, defendant did not expressly testify that he had been advised that his license would be suspended if he failed to pay the summons timely. Defendant's testimony, "I knew my license would get suspended if I don't take care of the ticket" is equivocal as to whether defendant possessed such knowledge at the time of the December 1, 2018 incident. Although defendant testified that "as soon as [he] found out" his license had been suspended, he "cleared" the suspension, defendant's testimony is unclear as to when he "found out" that his license had been suspended. Furthermore, although the People argue on appeal that defendant's Department of Motor Vehicles Driver's Abstract shows that a notice of suspension had been mailed to defendant at his address, even assuming that the Abstract does so provide, the Abstract alone is insufficient to invoke the rebuttable presumption that the notice had been received by defendant (see People v Sterling , 70 Misc 3d 132[A], 2020 NY Slip Op 51551[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2020] ["Generally, the receipt of a suspension notice from the DMV suffices to provide notice to the recipient, and proof of proper mailing gives rise to a presumption that the item was received by the addressee, which presumption is created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (internal quotation marks omitted)]; cf. People v Begemov , 1 Misc 3d 127[A], 2003 NY Slip Op 51533[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2003] [the defendant's "Department of Motor Vehicles Driver's Abstract, an Affidavit of Regularity/Proof of Mailing, and Orders of Suspension" created a presumption that the defendant was notified of the suspensions and thus knew of the suspensions at the time of his arrest]). Therefore, the People failed to establish that defendant knew, or had reason to know, that his license had been suspended (see e.g. People v Hagans , 63 Misc 3d 139[A], 2019 NY Slip Op 50567[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; cf. People v Wynter , 2003 NY Slip Op 51411[U], *1 [App Term, 1st Dept 2003] ["Based upon the defendant's furtive conduct at the scene and his statement to police that he did not have a driver's license, the trial court rationally could find that defendant knew or had reason to know that his driver's license was suspended at the time of the occurrence"]).
Defendant's convictions of resisting arrest were not against the weight of the evidence. To convict defendant of resisting arrest, the People had to prove, beyond a reasonable doubt, that defendant intentionally prevented or attempted to prevent a police officer from effectuating an authorized arrest of himself or another person (see Penal Law § 205.30 ; People v Andrews , 155 AD3d 764, 765 [2017] ). Here, as to the charge of resisting arrest related to the March 28, 2018 incident, the People established that the arrest was authorized, as the evidence demonstrated that the arresting officers had probable cause to believe that defendant had committed traffic infractions in their presence (see Vehicle and Traffic Law § 155 ; CPL 140.10 [1] [a] ; [2]; People v Clergeot , 20 Misc 3d 87, 89 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). The evidence regarding defendant's conduct in refusing to be handcuffed demonstrated that defendant intentionally prevented an authorized arrest of himself (see People v Lepard , 83 AD3d 1214, 1216 [2011] ; People v Somerville , 72 AD3d 1285, 1287 [2010] ; People v Myrick , 10 Misc 3d 138[A], 2005 NY Slip Op 52197[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]). As for the charge of resisting arrest related to the November 8, 2018 incident, the People likewise established that the arrest was authorized by providing evidence that the arresting officers involved in that incident had probable cause to believe that defendant had committed the offense of unlawful possession of marihuana (former Penal Law § 221.05 ) by smoking marihuana in public (see CPL 140.10 [1] ; People v Schobert , 93 AD2d 949, 950 [1983] ) and established that defendant intentionally prevented the authorized arrest by refusing to be handcuffed, necessitating the efforts of two officers to handcuff him (see Lepard , 83 AD3d at 1216 ; Somerville , 72 AD3d at 1287 ; Myrick , 10 Misc 3d 138[A], 2005 NY Slip Op 52197[U] ).
The conviction of failing to comply with a lawful order or direction of a police officer regulating traffic was similarly not against the weight of the evidence. To convict defendant of that offense, the People had to prove, beyond a reasonable doubt, that defendant failed or refused to comply with a lawful order or direction of a police officer or flagperson or other person duly empowered to regulate traffic (see Vehicle and Traffic Law § 1102 ). The evidence adduced at trial established that defendant admittedly failed to comply with an officer's order to "stay put" and not to move his vehicle as the officer was issuing defendant a traffic summons, and, further, that the officer's order to defendant sought to prevent a potential accident and involved regulating the control or movement of traffic (see People v Martin , 46 Misc 3d 143[A], 2015 NY Slip Op 50183[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; cf. People v DeCerbo , 4 Misc 3d 23, 24 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]; People v Bohn , 91 Misc 2d 132, 132 [App Term, 2d Dept, 9th & 10th Jud Dists 1977]).
The conviction of leaving a motor vehicle unattended was also not against the weight of the evidence. Vehicle and Traffic Law § 1210 (a) provides, as relevant here, that "[n]o person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, and effectively setting the brake thereon." The evidence established that defendant violated Vehicle and Traffic Law § 1210 (a) on March 28, 2018 by leaving his vehicle unattended on a public street, with its engine running.
To the extent that defendant challenges the verdict finding him guilty of aggravated unlicensed operation of a motor vehicle in the third degree related to the March 28, 2018 incident, defendant's contention is academic, as the Justice Court has already vacated that conviction (see People v Bradley , 48 Misc 3d 46, 48 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]).
Finally, as the People concede, defendant's conviction of unlawful possession of marihuana "became a nullity by operation of law, independently of any appeal," pursuant to CPL 160.50 (5) ( People v Johnson , 73 Misc 3d 127[A], 2021 NY Slip Op 50885[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021] [internal quotation marks and brackets omitted]; see People v Anonymous , 187 AD3d 512 [2020] ; People v Jones , 177 AD3d 444 [2019], lv denied 35 NY3d 942 [2020] ; People v Disano , 67 Misc 3d 131[A], 2020 NY Slip Op 50439[U] [App Term, 1st Dept 2020] ). Consequently, so much of the appeal as is from the judgment convicting defendant of unlawful possession of marihuana is dismissed as academic (see Johnson , 2021 NY Slip Op 50885[U] ; Disano , 2020 NY Slip Op 50439[U] ; People v Williams , 65 Misc 3d 154[A], 2019 NY Slip Op 51908[U] [App Term, 1st Dept 2019] ).
Accordingly, the judgment convicting defendant of aggravated unlicensed operation of a motor vehicle in the third degree is reversed and the accusatory instrument charging that offense is dismissed; and the judgments convicting defendant of resisting arrest, failing to comply with a lawful order or direction of a police officer regulating traffic and leaving a motor vehicle unattended, respectively, are affirmed.
GARGUILO, P.J., DRISCOLL and VOUTSINAS, JJ., concur.