People v Hernandez (Jose)

[*1] People v Hernandez (Jose) 2018 NY Slip Op 28382 Decided on November 29, 2018 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on November 29, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
2017-1272 S CR

The People of the State of New York, Respondent,

against

Jose A. Hernandez, Appellant.

Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.

Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Kenneth S. Diamond, J.H.O.), rendered November 10, 2016. The judgment convicted defendant, upon his default in appearing for trial, of operating a motor vehicle without insurance.

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the District Court for all further proceedings.

Defendant was charged with operating a motor vehicle without insurance (Vehicle and Traffic Law § 319 [1]). In September 2016, defendant appeared before the District Court, Suffolk County Traffic and Parking Violations Agency, pleaded not guilty to the charge and requested a trial. The court advised defendant that a trial was scheduled for November 10, 2016 and provided defendant with a document reflecting the date and time of his trial. The document further states, "If you fail to answer at that time, THE COURT MAY ISSUE A WARRANT FOR YOUR ARREST OR PROCEED IN YOUR ABSENCE AND YOU WILL BE LIABLE FOR ANY SENTENCE AND/OR FEES IMPOSED, INCLUDING INCARCERATION, AND other penalties permitted by law." Defendant was also provided with a notice, which informed defendant that "[f]ailure of any . . . parties to appear on the date set for trial may result in a suspension of [defendant's] driving privileges [and] a default conviction." When defendant failed to appear for the scheduled trial on November 10, 2016, the court entered a default judgment against defendant without conducting a trial. On appeal, defendant contends, among other [*2]things, that the court should not have rendered a default judgment against him.

While Vehicle and Traffic Law § 1806-a (1) permits "a default judgment of a fine" to be entered against a defendant who has been charged with a traffic infraction but failed to "answer within the time specified," the statute expressly provides that "[w]hen a person has entered a plea of not guilty and has demanded a hearing, no fine or penalty shall be imposed for any reason, prior to the holding of the hearing which shall be scheduled by the court of such city, village or town within thirty days of such demand." Given that defendant pleaded not guilty and requested a trial be conducted on his charge, and that no trial had been held before the court entered the default judgment against defendant, the default judgment of conviction cannot stand (see People v Malekan,56 Misc 3d 62, 64-65 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; cf. People v All State Props., LLC, 44 Misc 3d 133[A], 2014 NY Slip Op 51156[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Rosano, 39 Misc 3d 126[A], 2013 NY Slip Op 50410[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]).

In light of our determination, defendant's remaining contentions have been rendered academic.

Accordingly, the judgment of conviction is reversed and the matter is remitted to the District Court for all further proceedings.

GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2018