Opinion
2018-1048 Q CR
02-26-2021
The PEOPLE of the State of New York, Respondent, v. David FLORES, Appellant.
New York City Legal Aid Society ( Jose David Rodriguez Gonzalez of counsel), for appellant. Queens County District Attorney ( John M. Castellano, Johnnette Traill and Sharon Y. Brodt of counsel), for respondent.
New York City Legal Aid Society ( Jose David Rodriguez Gonzalez of counsel), for appellant.
Queens County District Attorney ( John M. Castellano, Johnnette Traill and Sharon Y. Brodt of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant waived his right to be prosecuted by an information and pleaded guilty to aggravated unlicensed operation of a motor vehicle in the third degree ( Vehicle and Traffic Law § 511 [1] [a] ), one of the charged offenses, in satisfaction of the accusatory instrument. On appeal, defendant contends that so much of the accusatory instrument as charged him with aggravated unlicensed operation of a motor vehicle in the third degree was facially insufficient because it did not sufficiently allege that he knew, or should have known, that his driver's license had been suspended.
As defendant waived his right to be prosecuted by an information, the facial sufficiency of the accusatory instrument must be measured by the standard required of misdemeanor complaints ( see People v Dumay , 23 NY3d 518, 522 [2014] ). An element of the offense of aggravated unlicensed operation of a motor vehicle in the third degree is that defendant knew, or had reason to know, that his driver's license had been suspended ( see Vehicle and Traffic Law § 511 [1] [a] ). The failure to allege an element of an offense in a complaint is a nonwaivable jurisdictional defect, which is reviewable on appeal even after a guilty plea ( see People v Dreyden , 15 NY3d 100, 103 [2010] ; People v Kalin , 12 NY3d 225, 229 [2009] ; People v Konieczny , 2 NY3d 569 [2004] ).
A review of the accusatory instrument, together with the supporting deposition, indicates that the police officer alleged that she had observed defendant operating a motor vehicle, that she conducted a "computer check of the records of the New York State Department of Motor Vehicles" relating to defendant, and that the "teletype printout reveal[ed] that at the time of the above observation" defendant was not a duly licensed driver under Vehicle and Traffic Law § 509. The officer further stated that her basis for believing that defendant had reason to know that his license was suspended or revoked is that "defendant was unable to produce a valid license" and that the computer check revealed that defendant's license had been suspended due to his failure to answer a traffic summons. Moreover, the officer alleged that all summonses have printed on them "if you do not answer this ticket by mail within fifteen (15) days, your license will be suspended. The suspension occurs automatically, by computer, within 4 weeks of the defendant's failure to answer." A copy of the computer printout was annexed to the supporting deposition.
The aforementioned factual allegations, read together with the attached document, sufficiently allege facts of an evidentiary character supporting or tending to support the charge of aggravated unlicensed operation of a motor vehicle in the third degree ( see CPL 100.15 [3] ; Vehicle and Traffic Law § 511 [1] [a] ) and provided reasonable cause to believe that defendant committed the offense charged ( see CPL 100.40 [4] [b] ), including that defendant knew, or had reason to know, of the suspension of his license ( see Vehicle and Traffic Law § 511 [1] ; People v Burca , 58 Misc 3d 147[A], 2018 NY Slip Op 50040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; People v Sanago , 35 Misc 3d 143[A], 2012 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; People v Michtavy , 32 Misc 3d 133[A], 2011 NY Slip Op 51442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the judgment of conviction is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.