People v El

[*1] People v El 2007 NY Slip Op 51014(U) [15 Misc 3d 1137(A)] Decided on May 18, 2007 Criminal Court Of The City Of New York, Kings County Nadelson, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2007
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

King J El



2006KNO09575



For the People: ADA Robert Geary

For the Defendant: Henry Dechalus, Esq.

Eileen N. Nadelson, J.

Background

Defendant was charged with the following offenses:

PL 195.05: Obstructing Governmental Administration in the Second Degree

VTL 319(1): Failure to Have Proof of Financial Security

VTL 401(1): Unregistered Motor Vehicle

VTL 402(1): Improper Display of Number Plates

VTL 509(1): Unlicensed Operator

VTL 511(1)(A): Aggravated Unlicensed Operation of a Motor Vehicle in the Third

Degree

VTL 511(2)(A)(IV): Aggravated Unlicensed Operation of a Motor Vehicle in the Second

Degree

Subsequent to arraignment and prior to trial the People dismissed the first charge of Obstructing Governmental Administration in the Second Degree, leaving the court to decide only the matters relating to violations of the Vehicle and Traffic Law.

At arraignment and thereafter, Defendant adamantly refused counsel, maintaining that, as a Moorish American, the court lacked jurisdiction over him. As a consequence, the court held a hearing to determine whether Defendant was competent to defend himself in a criminal

proceeding.

As this court stated in People v. Y.A., 2006 NY Slip Op. 50995(U) (Kings Criminal Ct. 2006), to determine whether a defendant is capable of defending himself in a criminal proceeding the court must make a searching inquiry into four areas of the defendant's background: age, education, occupation and previous exposure to legal procedures. People v. McIntyre, 36 NY2d 10, 364 N.Y.S.2d 873 (1974). The result of the court's inquiry in the instant case was the [*2]determination that Defendant, although mentally competent, would not be able to defend himself adequately to protect his legal rights in a criminal trial and, therefore, legal counsel was appointed on Defendant's behalf.

Jurisdictional Issue

Defendant initially moved to dismiss the action against him based on a claim of lack of jurisdiction.

Pursuant to the Constitution of the State of New York, Article VI, section 15 ( c):

The courts of city-wide jurisdiction of the city of New York shall have jurisdiction

over crimes and other violations of law, other than those prosecuted by indictment

....

Under the provisions of the New York Criminal Court Act, the New York City Criminal Court and the judges thereof:

...shall have jurisdiction with respect to crimes and offenses committed within

the city of New York, as follows:

(1) To hear, try, and determine all charges of misdemeanors, except charges of

libel;

(2) To hear, try, and determine all offenses of a grade less than misdemeanor.

These provisions of the New York Constitution and the New York City Criminal Court Act have been found to be constitutional by a court of competent jurisdiction. People v. Barrow, 6 Misc 3d 945, 791 N.Y.S.2d 906 (Sup. Ct. 2005).

Defendant's assertion that the court lacks jurisdiction over him is founded on his being a member of the "Moorish American Nation." This challenge to the jurisdiction of the American courts over members of the Moorish American Nation has been tried in both the federal and state courts, always without avail. See generally, Kaleem Bey v. Internal Revenue Service, 1993 U.S. Dist. Lexis 14315 (S.D.NY 1993); U.S. v. James, 328 F.3d 953 (7th Cir. 2003); Saabirah El v. City of New York, 2002 U.S. Dist. Lexis 12431 (S.D.NY 2002); People v. Michael T. Johnson, N.Y.L.J. p. 26, col 1 (Suffolk County Ct. July 3, 2006) This court also finds Defendant's jurisdictional argument unpersuasive.

The laws of the United States apply to all persons within its borders, regardless of the person's citizenship, nationality, or status as a stateless person. As indicated in the enabling statutes cited above, this court's jurisdiction is based on acts committed within the geographical boundaries of the city of New York, regardless of the status of the perpetrator. Consequently, the court denied Defendant's motion to dismiss for lack of in personam jurisdiction.

[*3]Evidence at Trial and Findings

The People's primary witness was the police officer who made the initial arrest of Defendant. The officer testifies that he observed Defendant sitting in the driver's seat of a vehicle that lacked any license plates. The automobile was stopped at a stop sign with the keys in the ignition and the engine running. When the officer requested Defendant to produce identification, Defendant refused and was arrested. At the precinct, investigation of Defendant's driving record revealed that his license had been suspended and that he had failed to pay numerous fines.

The only document entered into evidence was an abstract produced by the New York State Department of Motor Vehicles. The abstract indicated that Defendant had been previously charged and assessed with violations for driving without a license as well as a multitude of suspensions for failure to pay fines and respond to summonses.

At the close of the People's case in chief, Defendant moved to dismiss the action on the grounds that the People failed to make out a prima facie case for the crimes charged. At the time the motion was made the court reserved its decision. Defense counsel said that he wished to reserve his right to proceed pending the court's determination of the motion. The court indicated that it would like to hear the defense before deciding the motion to dismiss, but defense counsel insisted upon a decision prior to proceeding. The court then denied the motion, and defense counsel decided not to present a case in chief and rested.

Pursuant to VTL 319(1), there are penalties imposed for persons who operate a motor vehicle in the state without having proof of financial security. At the trial no evidence was produced to substantiate the allegation that Defendant violated this section of the Vehicle and Traffic Law, and so the court finds Defendant not guilty of this charge.

VTL 401(1) states:

Registration by owners. a. No motor vehicle shall be operated or driven

upon the public highways of this state without first being registered in

accordance with the provisions of this article....

The People failed to prove, by legally admissible evidence, that Defendant's automobile was not registered and, consequently, the court finds Defendant not guilty of this charge.

The credible testimony of the police officer indicates that Defendant's car did not display any license plates. VTL 402(1) states;

No person shall operate, drive or park a motor vehicle on the public

highways of this state unless such vehicle shall have a distinctive

number assigned to it by the commissioner and a set of number plates [*4]

issued by the commissioner with a number and other identification

matter, if any, corresponding to that of the certificate of registration

conspicuously displayed....

Based on the uncontroverted testimony at trial, the court finds Defendant guilty of violating section 402(1) of the Vehicle and Traffic Law.

VTL 509(1) states:

...no person shall operate or drive a motor vehicle upon a public

highway of this state ...unless he is duly licensed pursuant to the

provisions of this chapter.

The Department of Motor Vehicle abstract indicates that at the time of the occurrence that gave rise to Defendant's arrest he did not have a valid driver's license. Therefore, Defendant is found guilty of violating VTL 509(1).

Pursuant to 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...is suspended, revoked, or otherwise withdrawn by the

commissioner.

The evidence at trial shows that, because of the multiple violations having been imposed on Defendant prior to the instant arrest, he knew or should have known that his license had been suspended. The court finds Defendant guilty of violating VTL 511(1)(A).

Finally, because the abstract demonstrates that Defendant had significantly more than three suspensions for failing to answer, appear or pay a fine, the court finds Defendant guilty of violating VTL 511(2)(A)(IV),which states:

A person is guilty of the offense of aggravated unlicensed operation of

a motor vehicle in the second degree when...such person has in effect

three or more suspensions, imposed on at least three separate dates, for

failure to answer, appear or pay a fine....

Sentencing: [*5]

Throughout these proceedings Defendant has maintained that no regulation of the State of New York can limit his right to travel and, therefore, the court lacks jurisdiction over him. In this Defendant is misguided.

While the right to travel without restriction among the states is one of the fundamental rights guaranteed to citizens under the United States Constitution, see Dunn v. Blumstein, 405 U.S. 330 (1972), pursuant to the Fourteenth Amendment, the separate states, under their police powers, may regulate individual action in order to protect the public welfare. However, the exercise of such power may not violate the Constitutional mandate of due process. See generally, Cal. State Auto Assoc.v. Maloney, 341 U.S. 108 (1987).

In exercising its police power, the State of New York may impose certain restrictions on the use of its roadways in the furtherance of highway safety. Reitz v. Mealey, 314 U.S. 33 (1949) (reversed on other grounds). The state, by appropriate means, may issue drivers' licenses to insure driver competence and to protect others utilizing the highways Id. The right to drive is a privilege that the state may regulate to protect against potential injury to the public inflicted through a driver's incompetence. Id. Therefore, provided that adequate procedures are in place so that a license may be issued or revoked with procedural due process safeguards, there is no violation of any "Constitutional right." Bell v. Burson, 402 U.S. 535 (1971). In the instant matter, there has been no allegation that the procedures used violate due process and, consequently, Defendant's argument that the State cannot restrict his use of the roadways is found to be without merit.

In considering the guidelines for sentencing in this matter, the court is mindful of Defendant's failure to pay fines previously imposed since 2003. The Abstract of Driving Record entered into evidence indicates that the amount due and owing to the New York State Department of Motor Vehicles totals approximately $1500. Imposing additional monetary penalties appears to be meaningless since Defendant apparently has no regard for such penalties. However, the court believes that Defendant acted under the misconstrued interpretation of his rights rather than under any malicious defiance of the rules with which he is charged. Therefore, in arriving at the appropriate penalty, the court imposes the following:

With respect to the charge of Improper Display of Number Plates, VTL 402(1) mandates a fine of not less than twenty-five dollars nor more than two hundred dollars. In this matter the court has no discretion to impose a non-monetary penalty, and so fines Defendant the minimum mandatory fine of $25.00, plus the mandatory surcharge of $50.00

Section 509(1) of the VTL imposes a penalty of a fine to be set between seventy-five and three hundred dollars and/or imprisonment of not more than fifteen days. As indicated above, the court believe the imposition of additional fines against Defendant would be meaningless, and therefore the court sentences Defendant to 15 days in jail, plus the mandatory surcharge of $50.00. [*6]

Similarly, VTL 511(1)(a), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, imposes a penalty of a fine and or imprisonment for a period not to exceed thirty days. For this charge the court sentences Defendant to 15 days imprisonment, plus the mandatory surcharge of $50.00.

Finally, with respect to the charge, pursuant to VTL 511(2)(a)(iv), an unclassified misdemeanor, the punishment must be, under section 511(b), a sentence of jail of seven to one hundred eighty days and a fine of five hundred to one thousand dollars. For this charge, the court imposes a sentence of a fine of five hundred dollars and thirty days in jail, plus the mandatory surcharge of $50.00

All jail sentences are to be served concurrently.

This constitutes the decision of the court.

Dated: May 18, 2007

__________________________

EILEEN N. NADELSON, J.C.C.