People v J.T.

[*1] People v J.T. 2006 NY Slip Op 51799(U) [13 Misc 3d 1212(A)] Decided on September 11, 2006 Criminal Court Of The City Of New York, New York County Gesmer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 10, 2006; it will not be published in the printed Official Reports.

Decided on September 11, 2006
Criminal Court of the City of New York, New York County

The People of the State of New York

against

J.T., Defendant.



2006NY028238



Robert M. Morgenthau, District Attorney, New York County (Jonathan Berroya of counsel), for the People.

Steven Banks, The Legal Aid Society, New York (Peter A. Barta of counsel), for defendant.

Ellen Gesmer, J.

The defendant is charged with one count of aggravated unlicensed operation in the third degree (VTL § 511[1][a]) and one count of unlicensed driving (VTL § 509[1]). Defendant has moved to dismiss the accusatory instrument on the ground that he has been denied his statutory right to a speedy trial, pursuant to CPL 170.30(e) and CPL 30.30(1)(c). The resolution of the motion turns on whether the documents submitted by the People are sufficient to corroborate the allegation in the complaint that defendant knew or had reason to know that his license to drive had been suspended or revoked, which is an essential element of aggravated unlicensed operation. For the reasons set forth below, the Court finds that the People have not corroborated this allegation and therefore grants defendant's motion.

Defendant submitted a written speedy trial motion in court on July 17. The People made oral arguments in opposition and also asked for one week to respond in writing. The defendant asked for one week to reply. Accordingly, I directed the People to file their response on July 24 and defense counsel to file a reply by July 31. I stated that I would issue a decision in Court on September 11, 2006. The People have neither filed a response to defendant's motion, nor requested additional time to do so. Therefore, I will decide the motion based on defendant's motion papers, the complaint and documents submitted by the People to corroborate it, and the arguments made in open court.

Pursuant to CPL 30.30(1)(c), a motion to dismiss on speedy trial grounds must be granted where the People are not ready for trial within "sixty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months and none [*2]of which is a crime punishable by a sentence of imprisonment of more than three months."

The highest count in this case, aggravated unlicensed operation in the third degree, is a misdemeanor punishable by up 30 days in jail (VTL § 511[1][b]). Therefore, the People were required to be ready for trial within 60 days of the commencement of this case, minus excludable time.

On a 30.30 motion, the defendant meets his initial burden by simply alleging "that the prosecution failed to declare readiness within the statutorily prescribed time period." (People v Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify the exclusions upon which they rely (People v Berkowitz, 50 NY2d 333, 349 [1980]). In this case, the People did not respond in writing to defendant's motion and therefore have not met their burden of identifying any exclusions. Accordingly, the motion must be granted. If the Court were to consider the oral arguments made by the People as setting forth the exclusions on which they rely, the Court would reach the same conclusion.

This case was commenced on April 27, 2006 with defendant's arraignment. The case was adjourned to June 1, 2006 for the People to submit a supporting deposition. This 35 day period is chargeable to the People.

On June 1, 2006 the prosecution filed and served a copy of defendant's DMV abstract (the Abstract) in order to convert the complaint to an information. The Court held that the Abstract did not convert the complaint to an information. The case was adjourned to July 17, 2006 for conversion. On July 17, 2006, the People did not file any additional documents, and argued that the complaint had been converted on June 1. Defendant moved to dismiss, arguing that the People had not yet converted the complaint, and that, as a result, the 81 days since defendant's arraignment were chargeable to the People, well in excess of the permissible period. Therefore, the Court must decide whether the complaint was converted to an information on June 1 by the filing of the Abstract, or whether, as defendant argues, the complaint contains hearsay which has not been corroborated.

In the complaint, Police Officer Jack Tamayo alleges:

"that deponent is informed by Police Officer Baksh . . . that the informant observed the defendant operating a motor vehicle (the key was in the ignition, the engine was running and defendant was behind the wheel) on a public highway, to wit, the defendant was involved in automobile accident . . .

"Deponent state that the deponent conducted a computer check of the records of the New York State Department of Motor Vehicle which revealed that defendant's license was suspended [*3]on March 8, 2006 for a lapse in insurance and has not been reinstated. Deponent further states that his/her basis for believing that defendant had reason to know that his license was suspended is as follows:

"The computer check revealed that defendant's license was suspended for failure to properly insure a vehicle; that prior to such suspension being imposed the Department of Motor Vehicles sent to the defendant a warning letter' which stated that the defendant's license would be suspended within fifteen (15 days) of said letter if the defendant did not respond to the said warning letter; that the Department of Motor Vehicle did not suspend the defendant's driving privileges until after the defendant failed to respond to said warning letter."

To corroborate the complaint, the People submitted a supporting deposition from Officer Baksh and the Abstract. The Abstract shows that defendant's license was suspended on March 8, 20006 for an insurance lapse. It provides no other information concerning that suspension.

Under VTL § 511(1)(a), "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 or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner." Thus, aggravated unlicensed operation of a motor vehicle has a mens rea element, so the People must allege facts which provide reasonable cause to believe that the defendant knew or had reason to know that his license was suspended (see People v Osier, 17 AD3d 609 [2d Dept 2005], app den, 5 NY3d 767 [2005]; People v Carlsons, 171 Misc 2d 943, 944 [Nassau Dist Ct 1997]).

In the complaint, Officer Tamayo asserts that he believed that defendant knew his license was suspended based on a check of the DMV records, which, he claims, revealed that defendant's license was suspended because he failed to respond to a warning letter the DMV sent to the defendant. Thus, Officer Tamayo claims that defendant knew that his license was suspended because defendant received a letter from the DMV informing him that his license would be suspended. However, nothing in the accusatory instrument or the Abstract corroborates Officer Tamayo's statement that the DMV sent defendant a warning letter prior to suspending his license. Officer Tamayo has neither personal knowledge that the warning letter was sent nor does he claim to posses knowledge of DMV's mailing practices. Therefore, he cannot establish that the warning letter was mailed to defendant (Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [1st Dept 2004]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001][presumption of mailing is created by proof of actual mailing or proof of office procedure]). [*4]

The Court's holding does not impose an undue burden on the People. In order to enable the People to prove that suspension and revocation notices were mailed to defendants, the Legislature enacted VTL § 214 (L 1987, ch 688) which provides:

"The production of a copy of the notice of suspension or revocation together with an electronically-generated record of entry of the suspension or revocation upon the appropriate driver's license or registration file of the department and an affidavit by an employee designated by the commissioner as having responsibility for the issuance of such suspension or revocation setting forth the procedure for the issuance and the mailing of such notice of suspension or revocation shall be presumptive evidence that such notice of suspension or revocation was produced and mailed in accordance with such procedures."

Thus, when charging a defendant with violating any subsection of VTL Section 511, the People need only file, in addition to the usual DMV abstract, a copy of the notice allegedly sent to the defendant together with an affidavit from an employee of the DMV setting forth the DMV's procedures for issuing and mailing such notices (see, People v Meyer, 177 Misc 2d 537, 538 [App Term 2d Dept 1998]). Courts have approved the use of this procedure at the pleading stage to convert the complaint into an information (People v Pabon, 167 Misc 2d 214, 218-9 [Crim Ct, Bronx County 1995]; People v Garcia, 163 Misc 2d 862, 867-8 [Crim Ct, Bronx County 1989]).

The Court is not holding that VTL § 214 provides the only means of establishing, for pleading purposes, that defendant knew or should have known that his license was suspended. For example, in People v Jerome Armour (NYLJ, Oct. 27, 1998, at 30, col 4 [Crim Ct, NY County]), the Court found that the information adequately established that the defendant knew or should have known that his license was suspended where defendant's DMV abstract showed that he had previously been convicted of driving without a license.

Therefore, while a DMV abstract could establish, for pleading purposes, that a defendant had actual or constructive notice that his license was suspended, the Abstract in this case fails to do so. Defendant was arrested on April 26, 2006, less than two months after his license was suspended on March 8, 2006 for an insurance lapse. The Abstract states no facts from which it could be inferred that defendant knew or should have known of the suspension.

Therefore, the Court finds that the complaint remains unconverted as to the charge of aggravated unlicensed operation. Since the People never declared readiness, even as to the unlicensed driving charge, the entire period from April 27, 2006 to July 17, 2006, a total of 81 days, is chargeable to the People.Accordingly, defendant's motion to dismiss the complaint is granted. [*5]

Dated: September 11, 2006_____________________

Ellen Gesmer, Judge