People v Brown

[*1] People v Brown 2007 NY Slip Op 51129(U) [15 Misc 3d 1143(A)] Decided on June 5, 2007 Criminal Court Of The City Of New York, New York County Mandelbaum, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 19, 2007; it will not be published in the printed Official Reports.

Decided on June 5, 2007
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Tiffany Brown and Agueybana Gonzalez, Defendants.



2007NY012221



Appearances of Counsel:

People v Brown:

For the Defendant: Steven Banks, Esq., The Legal Aid Society (Christine L. Bella of counsel)

For the People: Robert M. Morgenthau, District Attorney, New York County (Andrew Warshawer of counsel)

People v Gonzalez:

For the Defendant: Steven Banks, Esq., The Legal Aid Society (Robert Bickel of counsel)

For the People: Robert M. Morgenthau, District Attorney, New York County (Melissa Sussman of counsel)

Robert M. Mandelbaum, J.

In each of these cases, the defendant moves to dismiss for facial insufficiency a charge of aggravated unlicensed operation of a motor vehicle.[FN1] Because both motions raise related issues, the court now decides them in a single opinion.[FN2]

Common to all charges of aggravated unlicensed operation is that the defendant have knowledge, or reason to know, that his or her driver license was suspended or revoked at the time of vehicular operation. Defendants contend that the informations filed against them fail to contain nonhearsay allegations establishing this essential element, thereby rendering the counts charging aggravated unlicensed operation insufficient on their face.[FN3]

Proof of knowledge that one's license has been suspended can be established in a variety of ways, depending on the reason for the underlying suspension. Thus, for example, if the license has been suspended as a result of a defendant's conviction of an offense involving controlled substances (see Vehicle and Traffic Law § 510 [2] [b] [v]), knowledge might be shown by introduction of the transcript of a sentencing proceeding containing the court's on-the-record advisal that such suspension was being imposed.

Here, the information filed against defendant Gonzalez alleges that he had reason to [*2]know that his license had been suspended because a computer check of the records of the Department of Motor Vehicles, conducted by the arresting police officer, "revealed that the defendant's license was suspended for failure to answer a New York State Important Notice Regarding Your Driving Privileges and Your Failure to Pay Child Support, and all such notices have printed on them . . . we will notify the Department of Motor Vehicles to suspend your driving privileges unless you take one or more of the following actions within forty-five days from the date of this notice . . .' The suspension occurs automatically (by computer) sixty days after the Notice is mailed, if the necessary steps are not taken."

These allegations, while providing reasonable cause to believe that defendant had reason to know of the suspension, are nevertheless hearsay, and thus insufficient. To be sure, the requirement that an information be supported by nonhearsay allegations can be established by evidentiary facts that would be admissible under an exception to the hearsay rule (see People v Casey, 95 NY2d 354, 361 [2000]). Thus, documentation from the Department of Motor Vehicles satisfying the foundational requirements of either the business-records exception (see CPLR 4518 [a], [c]), the public-records exception (see CPLR 4520), or the common-law public-documents exception (see Consol. Midland Corp. v Columbia Pharm. Corp., 42 AD2d 601 [2d Dept 1973]), if offered in support of the hearsay allegation that a notice of suspension for failure to pay child support (see Vehicle and Traffic Law § 510 [4-e]) had been mailed to defendant,[FN4] would render the information facially sufficient.

Indeed, the Legislature has specifically provided that "[t]he production of a copy of a notice or order issued by the [D]epartment [of Motor Vehicles], together with an electronically-generated record of entry of such order or notice upon the appropriate driver's license . . . and an affidavit of an employee designated by the [C]ommissioner as having responsibility for the issuance of such order or notice issued by the [D]epartment setting forth the procedure for the issuance and the mailing of such notice or order shall be presumptive evidence that such notice of suspension, revocation or order was produced and mailed in accordance with such procedures" (Vehicle and Traffic Law § 214). Accordingly, the filing of a copy of the order allegedly suspending defendant Gonzalez's license; an electronically-generated record of entry of that order on the license; and an affidavit from the Department of Motor Vehicles setting forth the Department's procedures for notifying drivers of such suspensions would, in conjunction with the allegations contained in the misdemeanor complaint, satisfy the statutory requirement that the element of knowledge be established by nonhearsay.

Here, however, no such affidavit of regularity or proof of mailing has been submitted to [*3]the court.[FN5] Rather, the essential element that defendant Gonzalez had reason to know that his license had been suspended is based solely on allegations by a police officer as to the content of notices issued by the Department of Motor Vehicles and the Department's procedures for mailing those notices to affected drivers facts of which the officer, as an employee of the New York City Police Department, not the State Department of Motor Vehicles, could not have personal knowledge.

Indeed, the necessity of corroboration of the police officer's allegations concerning defendant's knowledge of his suspension is evidenced by the manner in which the officer's separate allegations as to the fact of the suspension must be, and here have been, corroborated. For in addition to the essential element of notice that one's license has been suspended, a charge of aggravated unlicensed operation of course requires even more basic proof that the license was, at the time of the defendant's operation of the motor vehicle, in fact suspended. Thus, beyond alleging that defendant Gonzalez had reason to know of his suspension based on the mailing of a notice by the Department of Motor Vehicles, the arresting officer also alleges, as he must, that defendant's license was in fact suspended based here on the officer's having "conducted a computer check of the records of the New York State Department of Motor Vehicles." Neither party disputes that this allegation by the police officer is hearsay, thus obligating the People to supplement the misdemeanor complaint (as they have done) by filing an abstract of the defendant's driving record, certified by the Department of Motor Vehicles.

Such certified abstract, which sets forth each of the foundational requirements of the business-records exception to the hearsay rule,[FN6] properly serves to establish the fact of defendant's suspension by nonhearsay allegations. In the absence of the abstract, however, the police officer's allegation that the driver license had been suspended, based on a computer check of the records of the Department of Motor Vehicles an agency of which the officer is neither an employee nor a record custodian would be based not upon personal knowledge, but upon hearsay (see People v Pierre, 157 Misc 2d 812 [Crim Ct, NY County 1993]).

Accordingly, the charge of aggravated unlicensed operation must be dismissed against defendant Gonzalez. [*4]

The same result does not obtain, however, in the case of defendant Brown, whose alleged suspension arose not from a failure to pay child support, but rather from a failure to answer traffic summonses. The information alleges that Brown had reason to know that her license was suspended because a computer check of the records of the Department of Motor Vehicles conducted by the arresting police officer [FN7] revealed that the license had been suspended "for failure to answer a New York summons and all such summons[es] have printed on them, If you do not answer this ticket by mail within fifteen (15) days[,] your license will be suspended.' The suspension occurs automatically (by computer) within 4 weeks of the defendant's failure to answer."

In arguing that the information filed against her is facially insufficient, defendant Brown in effect contends that every charge of aggravated unlicensed operation, no matter the basis for the suspension, requires that the People file the three documents enumerated in Vehicle and Traffic Law § 214. But in enacting that provision which simply "creates a statutory presumption that the notice of suspension or revocation of the drivers license was mailed to the defendant if an affidavit of an employee of the Department of Motor Vehicles sets forth the procedure for issuance and mailing of the notice and if a copy of the notice and electronically generated record of entry of suspension or revocation are produced in court" (Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Book 62A, Vehicle and Traffic Law § 214) the Legislature did not intend that the knowledge element essential to a charge of aggravated unlicensed operation can be proved only by means of a Department of Motor Vehicles affidavit of regularity. Indeed, the statute is explicit that even in those cases where knowledge must be proved by establishing that a notice was mailed by the Department as opposed to, for example, by establishing that the defendant was advised of a suspension in open court "[t]he foregoing procedure shall not preclude the use of an affidavit of service by mail, a certificate of mailing or proof of certified or registered mail as proof of mailing of any such order or notice" (Vehicle and Traffic Law § 214).[FN8]

In contrast to Gonzalez where the police officer's allegations regarding the contents of a notice issued by and mailed according to the procedures of the Department of Motor Vehicles could only be based on hearsay in Brown the officer's factual basis for alleging that defendant had reason to know of her suspension is within the personal knowledge of the officer. For while a police officer not employed by the Department of Motor Vehicles can have no firsthand knowledge of the procedures for mailing a "Notice Regarding Your Driving Privileges and Your [*5]Failure to Pay Child Support" allegedly issued by that agency, such officer does have direct knowledge of the warning printed on every form summons, inasmuch as it is among the routine duties of the New York City Police Department to issue such summonses (see New York Police Department Patrol Guide § 209 [2007 ed]). And since police officers generally issue summonses containing the requisite printed notice by handing them directly to alleged offenders (see New York Police Department Patrol Guide § 209-9 [2007 ed]), the issuance of such a summons provides reasonable cause to believe that its recipient had reason to know of the license consequences of noncompliance. Accordingly, when a charge of aggravated unlicensed operation is premised on a suspension arising from a failure to pay a summons, a police officer's allegation as to the warning printed on such summonses is not hearsay, and suffices to establish the element of knowledge.

Nor is dismissal required in Brown as a result of the additional allegation contained in the complaint that the "suspension occurs automatically (by computer) within 4 weeks of the defendant's failure to answer." While this allegation as to the practices of the Department of Motor Vehicles, attested to by the arresting police officer, is hearsay, it is unnecessary to the charge of aggravated unlicensed operation, and therefore need not be converted to render the accusatory instrument facially sufficient. Rather, the remaining nonhearsay allegations that defendant's license was in fact suspended (corroborated by the certified abstract of driving record); that she was seen operating a motor vehicle during the pendency of the suspension; and that she had reason to know of the suspension (which was based on her failure to answer summonses) because all summonses warn of the consequences of ignoring them by themselves establish, if true, every element of the offense and its commission by defendant (see CPL 100.40 [1] [c]).

Defendant Brown's further argument that the Department of Motor Vehicles abstract of driving record filed in her case is insufficient to corroborate the underlying allegation that her license was in fact suspended a challenge that relates to both of the counts with which she is charged is rejected. Citing People v Smith (258 AD2d 245 [4th Dept 1999]), defendant contends that the abstract must be properly authenticated by affixation of the official seal of the Commissioner of Motor Vehicles (see CPLR 4540 [b]). To be sure, in Smith, the Court noted that "[t]he inquiry into the admissibility of the DMV abstract . . . does not end with the determination that it is admissible over a hearsay objection" (258 AD2d at 249; see also People v Sikorski, 280 AD2d 414 [1st Dept 2001]). As a result, the Smith Court held that an unauthenticated abstract of driving record was inadmissible before a grand jury, where the rules of evidence governing criminal trials generally apply (see CPL 190.30 [1]; People v Mitchell, 82 NY2d 509, 513 [1993]). At the misdemeanor pleading stage, however, although it may be the "best practice" to file authenticated documents proffered as supporting depositions (People v Inserra, 4 NY3d 30, 33 n * [2004]), the governing statute requires only "[n]on-hearsay allegations" (CPL 100.40 [1] [c]), not compliance with all other foundational requirements necessary to constitute admissible trial proof.

Accordingly, defendant Gonzalez's motion to dismiss the charge of aggravated unlicensed operation of a motor vehicle in the third degree is granted, and defendant Brown's motion to dismiss the charge of aggravated unlicensed operation of a motor vehicle in the second degree is denied.

Defendant Gonzalez remains charged with unlicensed driving. His motion to suppress [*6]evidence, including a noticed statement he made to the police, is held in abeyance pending an evidentiary hearing (see People v Huntley, 15 NY2d 72 [1965]; Dunaway v New York, 442 US 200 [1979]).[FN9] His motion to compel compliance with his demand for discovery and request for a bill of particulars is granted to the extent provided in the People's voluntary disclosure form, and his motion to preclude the People from impeaching his credibility with evidence of any prior convictions (see People v Sandoval, 34 NY2d 371 [1974]) or uncharged criminal, vicious or immoral conduct (see CPL 240.43) is referred to the trial court.

This opinion shall constitute the decision and order of the court. Footnotes

Footnote 1: Defendant Brown is charged with aggravated unlicensed operation of a motor vehicle in the second degree (see Vehicle and Traffic Law § 511 [2] [a] [iv]), and defendant Gonzalez, with aggravated unlicensed operation of a motor vehicle in the third degree (see Vehicle and Traffic Law § 511 [1] [a]). Although both defendants also stand charged with unlicensed driving (see Vehicle and Traffic Law § 509 [1]), defendant Gonzalez does not challenge the facial sufficiency of that count.

Footnote 2: The court previously rendered an oral decision denying defendant Brown's motion. This opinion serves to explain the basis for the court's prior ruling.

Footnote 3: In order to be sufficient on its face, an information, or a count thereof, must provide reasonable cause to believe that the defendant has committed the offense charged (see CPL 100.40 [1] [b]), and contain nonhearsay allegations that, if true, establish every element of the offense and its commission by the defendant (see CPL 100.40 [1] [c]).

Footnote 4: Although defendant Gonzalez further contends that the information fails to allege, even as hearsay, that such a notice had ever been mailed to him, the allegation that defendant "fail[ed] to answer" the specified notice sufficiently pleads that such notice had in fact been issued to him (see Casey, 95 NY2d at 360 ["So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading"]).

Footnote 5: That an affidavit of regularity from the Department of Motor Vehicles might be inadmissible at trial under the Confrontation Clause (see People v Pacer, 6 NY3d 504 [2006]) does not affect its ability to satisfy the pleadings requirement that the offense be supported by nonhearsay allegations. The right to confrontation is a trial right (see People v Hameed, 88 NY2d 232, 239 [1996] [citations omitted]).

Footnote 6: The certification, signed by the Acting Commissioner of Motor Vehicles, states: "This is to certify that this document is a true and complete copy of an electronic record on file in the New York State Department of Motor Vehicles, Albany, New York. The record was made in regular course of New York State Department of Motor Vehicles daily business. It is the business of the New York State Department of Motor Vehicles to create and maintain the records of drivers in the state of New York. Entries in this document are made at the time the recorded transactions or events took place or within a reasonable time thereafter. The person who reports the information is under a business duty to do so accurately."

Footnote 7: As in Gonzalez, the officer's hearsay allegation that defendant Brown's license was in fact suspended at the time of operation has been properly corroborated by a certified abstract of defendant's driving record.

Footnote 8: Nor, in determining that submission of the documents set forth in section 214 would have sufficed to convert the misdemeanor complaint in Gonzalez to an information (see CPL 170.65 [1]), does this court hold that the filing of such documents is the only means by which to convert a complaint alleging a suspension for failure to pay child support. It suffices to conclude that in this case the People have failed to convert the hearsay allegations by any means, thus rendering the accusatory instrument defective.

Footnote 9: Such a hearing was previously ordered in the case of defendant Brown.