People v Kennedy (Michael)

[*1] People v Kennedy (Michael) 2015 NY Slip Op 51916(U) Decided on December 30, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 30, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ.
570818/15

The People of the State of New York, Appellant,

against

Michael Kennedy, Defendant-Respondent.

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (Shari Ruth Michels, J.), dated June 19, 2014, which granted defendant's CPL 330.30 motion to set aside the jury verdict convicting him of aggravated unlicensed operation of a motor vehicle in the third degree (see Vehicle and Traffic Law § 511[1]) and substituted a conviction for the lesser included offense of driving without a license (see Vehicle and Traffic Law § 509[1]).

Per Curiam.

Order (Shari Ruth Michels, J.), dated June 19, 2014, affirmed.

The trial court properly granted defendant's CPL 330.30 motion to set aside the verdict convicting him of aggravated unlicensed operation of a motor vehicle in the third degree (see Vehicle and Traffic Law § 511[1]). Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), it was legally insufficient to prove that the defendant knew or had reason to know that his license had been suspended. The DMV record admitted at trial to show that a Notice of Suspension had been mailed to defendant "constituted testimonial hearsay and, thus, violated [defendant's] right of confrontation" (People v Rayford, 80 AD3d 780, 781 [2011], lv denied 16 NY3d 835 [2011]; see People v Pacer, 6 NY3d 504 [2006]). Defendant's right of confrontation was not protected by his opportunity to cross-examine an employee of the Bronx County DMV office, since this employee had no personal knowledge of the procedures utilized by the Albany DMV office, which handled the mailing of notices of suspension (see People v Abelo, 79 AD3d 668, 670-671 [2010] ["A witness who on cross-examination denies knowing what procedures were used at the time of mailing does not satisfy the obligation to produce a witness who can be adequately cross-examined concerning notice to defendant"]; People v Darrisaw, 66 AD3d 1427, 1428 [2009]; see also People v Francis, 114 AD3d 699 [2014], lv denied 23 NY3d 1036 [2014]). Thus, defendant was deprived of an "opportunity to contest a decisive piece of evidence against him . . . the evil the Confrontation Clause was designed to prevent" (People v Pacer, 6 NY3d at 512).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: December 30, 2015