Opinion
No. 2014BX062010.
05-15-2015
The PEOPLE of the State of New York, v. Numan MUSIC, Defendant.
Robert T. Johnson, District Attorney, Bronx County by Alexandra Jenik, Assistant District Attorney, for the People. The Legal Aid Society by Larrisa P. Rouse, for the Defendant.
Robert T. Johnson, District Attorney, Bronx County by Alexandra Jenik, Assistant District Attorney, for the People.
The Legal Aid Society by Larrisa P. Rouse, for the Defendant.
Opinion
ARMANDO MONTANO, J.
Defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle (VTL § 511[1][a] ) and Unlicensed Operation (VTL § 509[1] ).
Defendant moves for an order 1) dismissing the accusatory instrument as facially insufficient; 2) suppressing any and all statements made by and/or elicited from defendant for which defendant received notice pursuant to CPL § 710.30 (Huntley/Dunaway); 4) precluding the offering of any statements and/or identification testimony for which defendant has not received notice pursuant to CPL § 710.30 ; 5) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts; and 6) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the accusatory instrument, sworn to by PO James Dickson, read as follows:
Deponent states that, [on or about September 10, 2014 at approximately 9:42 p.m. at front of 251 West Kingsbridge Road, County of Bronx, State of New York], responding to a motor vehicle accident, he observed defendant standing next to a 2002 Ford, New York license plate number GHV5406. Deponent further states [that] he asked the defendant if he was driving the vehicle, defendant stated in sum and substance YES, I WAS IN THE VEHICLE.
Deponent further states that he obtained and read a teletype printout of the New York State Department of Motor Vehicles, whose computers are tied into our police computer for the purpose of obtaining records, which records were made and obtained in the regular course of business and which are regularly made in the court of business within a reasonable time after the event or occurrence, and said records show that the defendant's license to operate a motor
vehicle was suspended or revoked in that the defendant had in effect at least one suspension or revocation on at least one separate date for failure to answer a summons and failure to pay fine.
Deponent further states that his basis for believing that the defendant knew or had reason to know that his license was suspended or revoked is as follows: The Department of Motor Vehicle records revealed that defendant's license was suspended for failure to answer a traffic summons, and all such summons 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 four (4) weeks of the defendant's failure to answer a summons and failure to pay fine.
On December 15, 2014, the People filed with the Court a certified copy of defendant's Department of Motor Vehicles Abstract of Driving Record (“DMV Abstract”) and a Mailing Record for Notice of Suspension or Revocation in order to the convert the complaint into an information.
Motion to Dismiss
Defendant argues that the complaint is deficient in two respects. First, the complaint fails to allege that defendant was operating a vehicle on a public roadway. Although the complaint alleges that his vehicle was in front of 251 West Kingsbridge Road, defendant avers that one cannot assume that West Kingsbridge Road is a public highway as defined in VTL § 134.
Second, the complaint fails to establish that defendant knew or had reason to know that his license was suspended. Defendant contends that the documents submitted by the People to corroborate the hearsay allegations in the complaint are insufficient. Defendant notes that the address listed on the Notice of Suspension and the DMV Abstract differ and as such, the complaint and supporting depositions fail to establish the element of notice. Since the addresses do not match, in order to establish the element of notice, defendant asserts that the People are required to provide proof that a Notice of Suspension was mailed to him at an address consistent with the DMV Abstract or a supporting deposition from the police officer who personally handed him the summons.
Citing People v. Brown, 15 Misc.3d 1143(A) (Crim Ct, N.Y. County 2007), the People argue that the complaint alleges sufficient facts to support each element of the offenses charged. The People assert that similar to Brown, defendant is charged with aggravated unlicensed operation based upon suspensions arising from the issuances of summonses, defendant's failure to answer said summonses, and defendants' resultant failure to pay the fines associated with said summonses. The People note that defendant had a total of two suspensions on two different dates stemming from the failure to answer traffic summonses, each with a warning imprinted on its face indicating that the failure to answer said summons would result in a license suspension. The People further assert that the fact that defendant's license was suspended is corroborated by the certified DMV Abstract. As each element of the offenses charged is sufficiently pled, the argue that defendant's motion should be dismissed.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3] ; People v. Dumas, 68 N.Y.2d 729 [1986] ) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c] ). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b) ; Dumas, 68 N.Y.2d 729. Reasonable cause to believe that a defendant committed the crimes charged “exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL § 70.10. “In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged.” People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15 ; People v. Mellish, 4 Misc.3d 1013(A) (Crim Ct, N.Y. County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103 (1986). Moreover, “the Court is not required to ignore common sense or the significance of the conduct alleged.” People v. Gonzalez, 184 Misc.2d 262, 264 (App Term, 1st Dept.2000) quoting People v. Abdul, 157 Misc.2d 511, 514 (Crim Ct, N.Y. County 1993).
VTL § 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 is suspended, revoked or otherwise withdrawn by the commissioner.” VTL § 509 provides that “no person shall operate or drive a motor vehicle upon a public highway unless he is duly licensed. ”
The complaint alleges that Officer Dickson arrived at the scene, in front of 251 West Kingsbridge Road, in response to a motor vehicle accident. Upon arrival, Officer Dickson observed defendant standing next to a 2002 Ford motor vehicle. When asked whether defendant had been driving the vehicle, defendant admitted that he was driving the vehicle. Although the complaint does not explicitly identify West Kingsbridge Road as a public highway, motorists generally drive their vehicles on roadways. “So long as the factual allegations of an information 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. Casey, 95 N.Y.2d 354, 360 (2000). Based upon defendant's admission of driving a motor vehicle coupled with the surrounding circumstances, that the motor vehicle which defendant admitted to driving was involved in a motor vehicle accident, this Court can reasonably infer that defendant was operating a motor vehicle on a public highway, thereby satisfying the first element of the offenses charged, to wit: operation of a motor vehicle on a public highway.
The complaint further alleges that Officer Dickson conducted a search of the official computerized records of the DMV and observed that defendant's license had been suspended due to defendant's failure to answer a traffic summons. Officer Dickson next alleges that all traffic summonses have the following warning contained therein: “If you do not answer this ticket by mail within fifteen (15) days, your license will be suspended.” Where, as here, “a charge of aggravated unlicensed operation is premised on a suspension arising from a failure to pay a summons, a police officer's allegations as to the warning printed on such summonses is not hearsay, and suffices to establish the element of knowledge.” Brown, 15 Misc.3d 1143(A), *5. In addition, the filing of a certified copy of the DMV abstract sufficiently supports and corroborates Officer Dickson's sworn allegation that defendant's license had been suspended due to a failure to answer a summons. Id. These allegations are sufficient for purposes of pleading to establish reasonable cause to believe that defendant knew or had reason to know that his license had been suspended. See, People v. Crawley, 32 Misc.3d 131(A) (App Term, 1st Dept.2011) ; People v. Benitez, 44 Misc.3d 129(A) (App Term, 2d, 11th & 13th Jud Dists 2014) ; People v. Austin, 34 Misc.3d 136(A) (App Term, 2d, 11th & 13th Jud Dists 2011) ; People v. Costa, 40 Misc.3d 1232(A) (Crim Ct, Bronx County 2013).
As the elements of Unlicensed Operation are wholly included in the elements of Aggravated Unlicensed Operation of a Motor Vehicle, an accusatory instrument that is facially sufficient for Aggravated Unlicensed Operation of a Motor Vehicle is facially sufficient for the lesser included offense of Unlicensed Operation. Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is denied.
With respect to defendant's argument suggesting that for purposes of conversion the People must submit proof that the Notice of Suspension was mailed to defendant at the address listed on the DMV Abstract, this Court finds said argument to be without merit. Such evidence is not necessary for conversion in a case where the suspension is based upon the failure to answer a traffic summons. Furthermore, VTL § 509(8) provides that “[n]o licensee shall fail to notify the commissioner in writing of a change of residence as required by this article.” Defendant was required under VTL § 505(5) to notify the Commissioner of the DMV in writing “of any change of residence of such licensee within ten days after such change occurs.” The failure to comply with VTL § 505(5) estops a defendant from claiming improper service. Stillman v. City of New York, 39 AD3d 301 (1st Dept.2007) ; People v. Kirksey, 186 Misc.2d 514 (Ithaca City Ct, 2000) ; People v. Suarez, (Valley Stream Just Ct, 1996). Defendant cannot shirk his responsibility of ensuring that his address on file with the DMV is up-to-date and then later claim that he did not receive a Notice of Suspension mailed to a different address.
Motion to Suppress Statement Evidence
Defendant asserts that prior to his arrest on September 10, 2014, he not engaged in conduct indicative of criminal behavior. Rather, defendant maintains that he was sitting in his parked vehicle when his vehicle was struck in the rear by another vehicle. Even though he was not operating a motor vehicle, defendant asserts that he was approached by the police and subsequently searched and placed under arrest.
Defendant argues that any and all properly noticed statements allegedly made by and/or elicited from him were obtained illegally because 1) they are the tainted fruit of an unlawful arrest; 2) they were made after he was subjected to custodial interrogation without first being advised on his Miranda rights; 3) he made the statements without knowingly and intelligently waiving his right to remain silent; and 4) he made the statements involuntarily. In the alternative, defendant requests a Huntley/Dunaway hearing to determine whether the police had probable cause to detain and arrest hm.
The People assert that they should be permitted to use any of defendant's statements should he choose to testify. However, should a Huntley hearing be ordered, the People request that the scope of the hearing be limited to determine whether defendant's statement was made voluntarily. The People oppose defendant's request for a Dunaway hearing since defendant has failed to set forth sworn allegations of fact which would give rise to a Dunaway hearing.
A motion to suppress evidence “must state the ground or grounds of the motion and must contain sworn allegations of fact.” CPL § 710.60(1). A motion to suppress must be summarily granted where the defendant alleges a legal ground warranting suppression and the People concede the truth of the factual allegations. CPL § 710.60(2)(a). A Court may summarily deny a motion to suppress if the defendant fails to allege a proper legal basis for suppression or if the “sworn allegations of fact do not as a matter of law support the ground alleged.” CPL § 710.60(3)(b). “[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information.” People v. Mendoza, 82 N.Y.2d 415, 426 (1993). However, even if the defendant's factual allegations are deficient, summarily denying a motion to suppress is disfavored. In Mendoza, supra, the Court of Appeals explained:
The CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient. If the Court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.
In a motion to suppress a statement, all that is required to warrant a Huntley hearing is the mere claim that the defendant's statement was involuntary. People v. Weaver, 49 N.Y.2d 1012 (1980) ; People v. Bingham, 144 A.D.2d 682 (2d Dept.1988) ; Matter of Brian E., 206 A.D.2d 665 (3d Dept.1994). Therefore, defendant's motion for a Huntley hearing is granted.
With respect to defendant's request for a Dunaway hearing, this Court finds that defendant's moving papers are “minimally sufficient” to warrant a hearing on the issue of suppression. See, People v. Harris, 160 A.D.2d 515, 515 (1st Dept.1990). “When the validity of a warrantless arrest is challenged, the presumption of probable cause disappears and the People bear the burden of coming forward with evidence showing that it was supported by probable cause.” People v. Chaney, 253 A.D.2d 562, 564 (3d Dept.1998).Where material facts are in issue, a hearing must be held in order for the Court to determine whether evidence was obtained lawfully. People v. Burton, 6 NY3d 584 (2006). A hearing shall be held to determine the propriety of defendant's warrantless arrest and whether, in light of all the circumstances, probable cause existed for it. Therefore, defendant's motion for a Dunaway hearing is granted.
Motion to Preclude Statement and Identification Evidence
Defendant's motion to preclude the introduction of unnoticed statements and identification evidence is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial.
Sandoval/Molineaux/Ventimiglia
The People consent to disclosure of defendants' past criminal histories and/or prior bad or immoral acts which the People intend to use at trial and a pre-trial hearing pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974),), People v. Molineaux, 168 N.Y. 265 (1901), and People v. Ventimiglia, 52 N.Y.2d 350 (1981). This hearing shall be held immediately before the commencement of trial.
Future Motions
Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any future motions shall be summarily denied absent a showing of good cause.
Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is denied. Defendant's motion for a Huntley/Dunaway hearing is granted. Defendant's motion for a Sandoval/Molineaux/Ventimiglia hearing is respectfully referred to the trial judge. Defendant's motion to preclude the introduction of unnoticed statements and identification evidence is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.
This constitutes the decision and order of this Court.
A public highway is defined as “[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way .” VTL § 134.