People v El

[*1] People v El 2007 NY Slip Op 51147(U) [15 Misc 3d 1145(A)] Decided on June 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 7, 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.

After a bench trial at which Defendant was convicted of several violations of the Vehicle and Traffic Law and sentenced to various fines and terms of imprisonment, People v. King J El, 2007 NY Slip Op. 51014(U), execution of the prison sentences was stayed so that Defendant could get his affairs in order prior to going to jail. On the return date, Defense counsel made two oral motions: one, that Defendant could not be sentenced to jail without a pre-sentence report and; two, that Defendant could not be convicted of violating section 511 of the VTL without an affidavit of proof of regularity/proof of mailing to demonstrate that Defendant had knowledge of the suspension of his driving license. Defense counsel is incorrect with respect to both of these assertions.

CPL 390.20, Requirement of pre-sentence report states, in subdivision(2):

Where a person is convicted of a misdemeanor a pre-sentence report is not required,

but the court may not pronounce any of the following sentences unless it has ordered

a pre-sentence investigation of the defendant and has received a written report

thereof:

(a) A sentence of probation...;

(b) A sentence of imprisonment for a term in excess of ninety days;

( c) Consecutive sentences of imprisonment with terms aggregating

more than ninety days.

Subdivision (3) states that a court, in the exercise of its discretion, may order a pre-sentence report even if not required by this statute.

Defense counsel argued that Defendant has a right to a pre-sentence report before he can be sentenced to jail time. In U.S. ex rel, Boone v. Fay, 231 F. Supp. 387 (S.D.NY 1964), the court stated that the failure of a state court to exercise discretion and require a pre-sentence report does not trespass on any protected Constitutional right of a criminal defendant. In the instant matter, Defendant was convicted of a misdemeanor and was sentenced to two fifteen day jail [*2]terms and one thirty day jail term, the sentences to run concurrently. See People v. King J El, id. Consequently, no pre-sentence report is required and the court did not feel compelled to exercise its discretion to mandate a pre-sentence report. Therefore, Defendant's motion to stay execution of the jail sentences until a pre-sentence report is prepared is denied.

In arguing that the convictions for violations of VTL 511 cannot stand absent an affidavit of regularity/ proof of mailing, Defendant has supplied the court with two judicial opinions. However, Defendant has misconstrued the words of the cases submitted.

The first case, People v. Begemov, 2003 NY Slip Op. 51533(U), (2d Dept. App. Term 2003), states that such an affidavit creates "a presumption that defendant was notified of said suspensions...." The second case, People v. Capellan, 6 Misc 3d 809 (Kings County Criminal Court 2004), cites to the Begemov decision as authority that such affidavits are admissible as presumptive evidence that notice of the suspensions was mailed to a defendant. Ii is noted that in order to be convicted of violating VTL 511, a person must know or have reason to know that his or her driving license has been suspended. People v. Pabon, 167 Misc 2d 214, 640 N.Y.S.2d 421 (Bronx County Criminal Court 1995).

"Whether a defendant knew or had reason to know that his license was suspended is a question of fact which must be determined beyond a reasonable doubt.... Compliance with the mailing statute merely gives the prosecution the benefit of a rebuttable presumption at the time of trial that the defendant knew or had reason to know that his privilege to drive had been suspended. ... It does not preclude the People from establishing knowledge by other means." See generally People v. Kleiner, 174 Misc 2d 261, 664 N.Y.S.2d 704 (Richmond County Sup. Ct. 1997).In the instant case the court believes that the People have established by credible evidence that Defendant was aware, or should have been aware, of his suspensions. Therefore, the court finds no merit in Defendant's argument that the introduction of an affidavit of regularity/ proof of mailing is the sine qua non requirement to find a person guilty of violating VTL 511.

At the adjourn date Defendant was prepared to pay the fines and surcharges imposed by the court. Because of Defendant's acquiescenceto these penalties, which the court originally believed Defendant would not do, the court modifies its original decision by reducing Defendant's jail sentence for violating VTL 511(2)(a)(iv) to a term of fifteen days, to run concurrently with the other jail times imposed.

This constitutes the decision of the court.

Dated: June 7, 2007

__________________________

EILEEN N. NADELSON, J.C.C. [*3]