People v Fong

[*1] People v Fong 2009 NY Slip Op 52100(U) [25 Misc 3d 1215(A)] Decided on October 19, 2009 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2009
District Court of Nassau County, First District

The People of the State of New York,

against

Stephan Fong, Defendant.



2008NA022169

Andrew M. Engel, J.

The Defendant is charged under Docket Numbers 2008NA022169 and 2008NA031353 with aggravated unlicensed operation of a motor vehicle in the third degree, in violation of VTL § 511(1)(a). The Defendant is charged under Docket Number 2009NA003143 with speeding , passing a steady red traffic signal and unlicensed operation of a motor vehicle, in violation of VTL §§ 1180(d), 1111(d)(1) and 509(1), respectively. Finally, under Docket Number 2009NA009602 the Defendant is charged with aggravated unlicensed operation of a motor vehicle in the second degree, in violation of VTL § 511(2)(a)(iv), and with producing an invalid insurance card and failing to stop at a stop sign, in violation of VTL §§ 319(2) and 1172(a), respectively.

The Defendant now moves to dismiss all four (4) dockets pursuant to CPL §§ 170.30(1)(f) and (g), 170.40 and 170.45. In so moving, the Defendant argues that he was an Illinois resident, that his New York State driver's license had expired on November 7, 2007 and that he possessed a valid Illinois driver's license which had been issued on February 13, 2008, all before and at the time of the alleged offenses. The Defendant further argues that under these circumstances he cannot be charged with "any form of unlicensed operation under New York State Law" or "with Aggravated Unlicensed Operation due to his expired New York State Driver License." (Jessup Affirmation 7/13/09, ¶ 8) The Defendant alleges that a pre-requisite to the issuance of an Illinois driver's license was the surrender of his New York State driver's license, and that "the very issuance of the Illinois license is persuasive evidence that no suspensions existed at the time it's (sic) issuance." (Jessup Affirmation 9/17/09, ¶ 9) The Defendant also suggests that the New York State Commissioner of Motor Vehicles is compelled to recognize the Defendant's Illinois driver's license and is without authority to suspend either the Defendant's license or his privilege to operate a motor vehicle in New York State. Finally, the Defendant argues that for the aforesaid reasons he "did not know or have reason to know that the privilege to drive in New York State conferred upon him by the State of Illinois by virtue of the issuance of a valid Illinois driver (sic) license was anything but valid." (Jessup Affirmation 9/17/09, ¶ 10)

The People oppose the motion, arguing that the accusatory instruments in each matter are facially sufficient and that a certified copy of an abstract of the Defendant's driving record discloses that on the dates in question the Defendant had numerous suspensions of his privileges to drive in New York State, of which he had been notified by the Department of Motor [*2]Vehicles. The People further allege that at the time of the October 23, 2008 offenses, alleged under Docket Numbers 2008NA031353 and 2008NA003143, the Defendant admitted he was aware of the suspensions then in effect.

As indicated hereinabove, the Defendant moves to dismiss pursuant to CPL §§ 170.30(1)(f) and (g), 170.40 and 170.45. The Defendant does not seek dismissal claiming the accusatory instruments are defective, i.e. facially insufficient, pursuant CPL § 170.30(a).

CPL § 170.30(1)(f) permits dismissal of an information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint where "[t]here exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged[.]" The court does not find that there are any such impediments to the conviction of the Defendant in the matters before this court.

Article VI § 16(d) of the New York State Constitution provides, in pertinent part: "The district court shall have such jurisdiction as my be provided by law ...." CPL § 10.30(1) provides: "Local criminal courts have trial jurisdiction of all offenses other than felonies." CPL § 10.10(3)(a) provides: " Local criminal court' means: (a) A district court." CPL § 20.40 provides, in pertinent part: "A person may be convicted in an appropriate criminal court of a particular county, of an offense of which the criminal courts of this state have jurisdiction pursuant to section 20.20, committed ... by his own conduct ... when: 1. Conduct occurred within such county sufficient to establish (a) an element of such offense[.]" VTL § 225 provides, in pertinent part: "Whenever a crime and a traffic infraction arise out of the same transaction or occurrence, a charge alleging both offenses may be made returnable before the court having jurisdiction over the crime."

It is undisputed that each of the dockets sub judice involve allegations of various criminal and traffic infractions having been committed by the Defendant on roadways in the Town of Hempstead, County of Nassau. As such, there are no jurisdictional impediments to the Defendant's conviction of the offenses charged.

There is similarly no legal impediment to such conviction. A "legal impediment to conviction," as contemplated by CPL § 170.30(1)(f), involves the absence of an element of the offense charged rendering it impossible to obtain a conviction against the Defendant. See: People v. Gordon, 88 NY2d 92, 643 NYS2d 498, (1996) It is the Defendant's burden to demonstrate same.

That the Defendant may have obtained an Illinois driver's license sometime between five (5) and fifteen (15) months prior to the dates involved herein does not render it impossible for the People to obtain a conviction against the Defendant for the Vehicle and Traffic Law violations alleged. Certainly, the Defendant's possession of an Illinois driver's license would not prevent his conviction, under Docket Number 2009NA003143 for speeding or passing a steady red traffic signal, or under Docket Number 2009NA009602 for producing an invalid insurance card or failing to stop at a stop sign. Moreover, the Defendant's allegation that he held a valid Illinois driver's license on the dates in question does not prevent his conviction for aggravated unlicensed operation of a motor vehicle or unlicenced operation of a motor vehicle.

Whether or not "the fact that the defendant possessed a valid Illinois Driver (sic) License compels the conclusion that the defendant could not be charged with Aggravated Unlicensed Operation due to his expired New York State Driver (sic) License[,]" (Jessup Affirmation 7/13/09, ¶ 8) such possession neither prevents the suspension of his "privilege of [*3]operating [a] motor vehicle in this state," nor his conviction for aggravated unlicensed operation of a motor vehicle for the operation of a motor vehicle in New York, when he knows, or has reason to know that his privileges have been so suspended. Whether or not the Commissioner of Motor Vehicles may suspend the Defendant's Illinois driver's license itself, there are number of provisions of the New York State Vehicle and Traffic Law which authorize the Commissioner to suspend his privilege to drive in this State.

VTL § 226(3)(a) provides: "If the person charged with the violation shall fail to answer the summons as provided herein, the commissioner may suspend such person's license or driving privilege ...." VTL § 227(4)(A) provides that after the assessment of a penalty for a traffic infraction, "[t]he driver's license or privileges, ... may be suspended pending the payment of any penalty so imposed." VTL § 510(3)(a-k) provides, in pertinent part, that "the privilege of a non-resident of operating a motor vehicle in this state and of operation within this state of any motor vehicle owned by him ... may be suspended or revoked[,]" for a variety of reasons, including, but not limited to, "any violation of the provisions of this chapter," any violation of a local ordinance or regulation prohibiting dangerous driving, some physical or mental disability of the license holder, the conviction of the license holder of a felony, gross negligence in the operation of a motor vehicle, knowingly permitting the use of a motor vehicle in the control of the license holder in the commission of a crime, and wilfully evading prosecution for an offense against the motor vehicle or traffic laws of this or any other state or jurisdiction. VTL § 510(4-a)(a) provides, in pertinent part, that "[u]pon receipt of court notification of the failure of a person to appear within sixty days of the return date or new subsequent adjourned date, pursuant to an appearance ticket charging said person with a violation of any of the provisions of this chapter ... or the failure to pay a fine imposed by a court the commissioner or his or her agent may suspend the driver's license or privileges of such person ...." VTL § 510(4-a)(c) similarly provides for the suspension of the driver's license or privileges for the failure to appear before or pay the fine imposed by "a traffic and parking violations agency."

In the matter sub judice, according to a certified copy the Defendant's driving record, as maintained by the New York State Department of Motor Vehicles ("DMV"), following the expiration of his New York State driver's license on November 7, 2007, and before being charged with aggravated unlicensed operation of a motor vehicle in the third degree on July 10, 2008, the Defendant's privileges to operate a motor vehicle in the State of New York were suspended five (5) times on three (3) dates. It is claimed that the Defendant had a suspension on January 16, 2007, for the failure to pay a driver's assessment fee, a suspension on May 14, 2008, for the failure to pay a fine, and three (3) suspensions on May 15, 2008, for the failure to pay fines, all of which remained uncleared. The DMV records further suggest that the suspensions of January 16, 2007 and May 15, 2008 remained in effect on October 28, 2008 when the Defendant was charged, inter alia, with aggravated unlicensed operation of a motor vehicle in the third degree. The People further claim, relying on these records, that on April 17, 2009, when he was charged with, inter alia, aggravated unlicensed operation of a motor vehicle in the second degree, the Defendant had in effect a total of eleven (11) suspensions received on four (4) different dates. By this time, according to the records submitted by the People, in addition to the suspensions of January 16, 2007 and May 15, 2008, the Defendant had a suspension on March 19, 2009, for the failure to answer a summons, and six (6) suspensions on January 15, 2009, also for the failure to answer summonses. The People have also submitted documentation supporting their allegation of notice having been provided to the Defendant for at least some of these [*4]suspensions; and, on at least one of the occasions involved herein, it is alleged that the Defendant acknowledged that he was aware of his suspensions and was attempting to resolve them.

The court does not find that any of these suspensions, or the charges of aggravated unlicensed operation of a motor vehicle based thereon, violate the Fourteenth Amendment of the United States Constitution, as propounded by the Defendant. While New York State must, and does, give full faith and credit to Illinois' issuance of driver's licenses, this does not mean that the Defendant, or any other out-of-state driver, may violate the vehicle and traffic laws of the State of New York with impunity. Such an absurd result would "allow the holder of an out-of-state license to continue driving in New York, when, under the same circumstances, the holder of a New York license would be prohibited from driving." Vanderminden v. Tarantino, 60 AD3d 55, 871 NYS2d 760 (3rd Dept. 2009) [driving privileges of Vermont licensed driver suspended pursuant to the prompt suspension provisions of VTL § 1193(2)(e)(7)]

As for the charge of unlicensed operation of a motor vehicle, in violation of VTL § 509(1), while, as the Defendant suggests, VTL § 250(2) provides an exemption for validly licensed out-of-state drivers, "[t]he exemption granted in this subdivision shall not apply to persons whose privilege of operating a motor vehicle in this state, ... , has been suspended or revoked, until such suspension or revocation has been terminated or privilege of operating a motor vehicle restored." Additionally, it is noted that at the time of the issuance of the simplified traffic information charging the Defendant with unlicensed operation of a motor vehicle the Defendant provided the police with a New York State driver's license which had expired fifteen (15) months earlier and not a valid Illinois driver's license.

While the Defendant has raised various questions of fact concerning the issuance of an Illinois driver's license, the basis and validity of the suspensions of his New York driving privileges and his knowledge of some or all of these suspensions, he has failed to demonstrate that there is a legal impediment to his conviction of all the offenses charged. "To hold otherwise would convert the reviewing court's function into a summary judgment evaluation of the quality and quantum of the People's evidence, a function reserved to the petit jury." People v. Gordon, supra . Accordingly, that branch of the Defendant's motion seeking the dismissal of the accusatory instruments pursuant to CPL § 170.30(1)(f) is denied.

CPL §§ 170.30(1)(g) and 170.40 permit the dismissal of the accusatory instruments in the interests of justice where "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." CPL §170.40 The court's discretion in granting such an application "is neither absolute nor uncontrolled." People v. Wingard, 33 NY2d 192, 351 NYS2d 385 (1973). See also: People v. Kelley, 141 AD2d 764, 529 NYS2d 855 (2nd Dept.1988) "The Trial Court's discretion to dismiss in the interests of justice, should be exercised sparingly' and only in that rare' and unusual' case where it cries out for fundamental justice beyond the confines of conventional considerations.' People v. Belge, 41 NY2d 60, 62-63, 390 NYS2d 867, 359 NE2d 377; People v. Belkota, 50 AD2d 118, 120, 377 NYS2d 321; People v. Kwok Ming Chan, 45 AD2d 613, 615-616, 360 NYS2d 425 (1st Dept.)." People v. Insignares, 109 AD2d 221, 491 NYS2d 166 (1st Dept.1985) The court must weigh the competing interests of the Defendant, the complainant and the community at large. See: People v. Richert, 58 NY2d 122, [*5]459 NYS2d 734 (1983); People v. Schlessel, 104 AD2d 501, 479 NYS2d 249 (2nd Dept.1984); People v. Toback, 170 Misc 2d 1011, 652 NYS2d 946 (City Ct. Long Beach1996)

Evaluating each of the factors set forth in CPL § 170.40(1)(a-j), the court does not find the matter sub judice to be an "unusual case that cries out for fundamental justice beyond the confines of conventional considerations of legal or factual merits of the charge or even on the guilt or innocence of the defendant' (citations omitted)." People v. Belge, 41 NY2d 60, 62-63, 390 NYS2d 867, 378 (1976) [concurring opn. by Fuchsberg, J.]; See also: People v. Dawkins, 289 AD2d 589, 735 NYS2d 818 (2nd Dept. 2001); People v. Hudson, 217 AD2d 53, 634 NYS2d 752 (2nd Dept.1995) While questions of fact may exist regarding the existence and validity of the Defendant's Illinois driver's license and the suspensions of his New York State driving privileges, the People have presented significant evidence to support a prima facie case against the Defendant. If the evidence presented is true, the Defendant may be found to be a significant and repetitive scofflaw, operating his vehicle upon the roadways of this county in a manner endangering the well being of its residents and evading accountability for his conduct. The Defendant has presented no countervailing evidence or argument which would suggest that he should not be held to account for such continuing conduct, should he have committed same in the instances now before this court. Accordingly, that branch of the Defendant's motion which seeks to dismiss in the interests of justice is denied.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

October 19, 2009

___________________________

Andrew M. Engel

J.D.C.