Opinion
2012-515 K CR
04-09-2015
The People of the State of New York, Respondent, v. Ian Scott, Appellant.
PRESENT: : , SOLOMON and ELLIOT, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Gerstein, J.), rendered November 22, 2011. The judgment, insofar as appealed from as limited by the brief, convicted defendant, after a nonjury trial, of aggravated unlicensed operation of a motor vehicle in the third degree.
ORDERED that the judgment of conviction, insofar as appealed from, is reversed, on the law and as a matter of discretion in the interest of justice, so much of the accusatory instrument as charged defendant with aggravated unlicensed operation of a motor vehicle in the third degree is dismissed, and the fine, if paid, is remitted.
Insofar as is relevant to this appeal, defendant was convicted, following a nonjury trial, of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). On appeal, defendant contends that so much of the information as charged him with aggravated unlicensed operation of a motor vehicle in the third degree is facially insufficient because the factual allegations supporting that charge fail to show that he knew, or had reason to know, that his license had been suspended. Defendant further contends that the trial evidence was legally insufficient to establish, beyond a reasonable doubt, his guilt of aggravated unlicensed operation of a motor vehicle in the third degree because the People failed to show that he knew, or had reason to know, that his license had been suspended.
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 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731), and the failure to meet these requirements may be asserted at any time, with the exception of the requirement of nonhearsay allegations, which, insofar as is relevant to this appeal, is waived if it is not timely raised by motion in the trial court (see People v Casey, 95 NY2d 354). 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 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d at 360).
The factual allegations of the information in the case at bar state that the deponent police officer, upon his search of the official, computerized records of the Department of Motor Vehicles (DMV), discovered that defendant's driving privilege had been suspended on August 5, 2009 as a result of defendant's failure to answer or appear in response to a traffic summons; 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] [a]; People v Benitez, 44 Misc 3d 129 [A], 2014 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; People v Maldonado, 42 Misc 3d 81 [App Term, 2d, 11th & 13th Jud Dists 2013]; People v Austin, 34 Misc 3d 136 [A], 2011 NY Slip Op 52402[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v Crawley, 32 Misc 3d 131 [A], 2011 NY Slip Op 51334[U] [App Term, 1st Dept 2011]; see also People v Sanago, 35 Misc 3d 143 [A], 2012 NY Slip Op 50943[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, so much of the accusatory instrument as charged defendant with aggravated unlicensed operation of a motor vehicle in the third degree is facially sufficient.
Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). Nevertheless, we will consider this challenge in the interest of justice. To convict defendant of aggravated unlicensed operation of a motor vehicle in the third degree in violation of Vehicle and Traffic Law § 511 (1) (a), the People had to prove, beyond a reasonable doubt, that, on August 5, 2009, defendant "operate[d] a motor vehicle upon a public highway while knowing or having reason to know that [his] 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" (emphasis added). In order to establish that defendant knew, or had reason to know, that his license had been suspended, the People sought to prove that the suspension notice had been properly mailed to defendant, so that they could then invoke the presumption that the notice had been received by defendant (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).
Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that defendant correctly argues that the testimony provided by the People's DMV witness, who was employed in a Brooklyn DMV office, was insufficient to establish the DMV's standard office practices and procedures designed to ensure that suspension notices are properly addressed and mailed from Albany. Although, at trial, the witness testified that she was familiar with the DMV's procedures for "alerting motorists regarding suspensions," and that suspension notices are mailed to license holders through the United States Postal Service by a DMV representative in Albany, she did not know how suspension notices were provided to the United States Postal Service. Since the testimony of the witness did not adequately describe the DMV's standard office mailing practices and procedures for its Albany office, from which the suspension notice had allegedly been mailed to defendant, no presumption arose that defendant had received the suspension notice (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679). As a result, the People failed to establish that defendant knew, or had reason to know, that his license or privilege of operating a motor vehicle in New York was "suspended, revoked or otherwise withdrawn by the commissioner."
Accordingly, the judgment of conviction, insofar as appealed from, is reversed, so much of the accusatory instrument as charged defendant with aggravated unlicensed operation of a motor vehicle in the third degree is dismissed, and the fine, if paid, is remitted.
Weston, J.P., Solomon and Elliot, JJ., concur.
Decision Date: April 09, 2015