People v Dumas

[*1] People v Dumas 2013 NY Slip Op 23368 Decided on October 25, 2013 City Court Of Buffalo Ogden, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 25, 2013
City Court of Buffalo

The People of the State of New York, Plaintiff,

against

Jim D. Dumas, Defendant.



13 T 016785



FRANK A. SEDITA, III

Erie County District Attorney

By: Patrick Fitzsimmons, Esq., ADA

Appearing for the People,

LEGAL AID BUREAU OF BUFFALO, INC.

By: Justin Ginter, Esq..

Appearing for the Defendant.

E. Jeannette Ogden, J.

Defendant was arraigned on the charges of violating Vehicle and Traffic Law Sections §512, [operating a motor vehicle with a suspended/revoked registration] and §375.12(A)(B)(2) [ operating a motor vehicle with non transparent side windows], two counts. The accusatory instruments consist of three (3) Simplified Traffic Informations (STI's) and a Supporting Deposition of Buffalo Police Officer B. Pitts which states that on 10/6/13 at 6:53 pm at 2246 Bailey Avenue in the City of Buffalo "while on patrol observed def operating ny reg gdb 9127 traveling EB on E. Ferry with front tinted windows tested at 33% upon further investigation def did have suspended reg for parking violations REGISTRATION EXPIRATION DATE: 2014-10-25 STATUS: SUSPENDED: PARKING VIOLATIONS - DEFAULT 2013-09-25 SUSPENDED: PARKING VIOLATIONS SUSPENSION - DEFAULT STYLE:GOLD LOGO: GOLD LEGEND: PASSENGER PLATE ISSUED: 2013-01-25."

The STI alleging a violation of VTL §512 indicates, on its face, that the operator is not the [*2]owner of the motor vehicle.

Defendant asserts that the STI alleging the violation of VTL § 512 should be dismissed because he is not the owner of the vehicle, had no knowledge that the registration was suspended/revoked and no reason to know that the registration was suspended/revoked as the registration certificate affixed to the windshield of the vehicle does not expire until 10/25/14.

The People contend that VTL § 512 is a strict liability statute and Defendant's knowledge that the registration was suspended/revoked, or lack thereof, is irrelevant. The only elements of the offense are operation of a motor vehicle while the vehicle's registration is suspended or revoked, citing People v Krenzer, 180 Misc 2d 757, 690 N.Y.S.2d 838 (1999).

The Court does not disagree with the People's contention that VTL § 512 is a strict liability statute. However, while the Legislature did not expressly include the element of knowledge in the charge of VTL § 512, the element of knowledge is included in the similar charge of VTL § 511, which prohibits the operation of a motor vehicle upon a public highway while knowing or having reason to know that such person's license is suspended or revoked. The safeguards of notice contained in VTL §511 protect the Defendant's Fourteenth Amendment Due Process rights and should be applicable hereto.

The constitutional safeguards afforded by the Due Process Clause of our State

and Federal Constitutions for the establishment of criminal liability implicitly require the

Court to infer the element of knowledge to the charge of VTL § 512 where, as in the case at bar, it is undisputed that the operator of the vehicle is not the owner and the registration

certificate affixed to the windshield has not expired.

Penal Law §15.15(2) provides that "although no culpable mental state is expressly

designated in a statute defining an offense, a culpable mental state may nevertheless be

required for the commission of such offense, or with respect to some or all of the material

elements thereof, if the proscribed conduct necessarily involves such culpable mental state.

A statute defining a crime, unless clearly indicating a legislative intent to impose strict

liability, should be construed as defining a crime of mental culpability. This subdivision

applies to offenses defined both in and outside this chapter."

Keeping these principles in mind, this Court finds that the element of knowledge,

on the part of the non owner- operator, that the vehicle registration was suspended or

revoked at the time of its operation, may be implicated by the Defendant as a trial issue to be considered by the Court in determining culpability. However, since knowledge is not

an express element of the offense, the absence thereof at the pleading phase is not fatal

to the sufficiency of the STI and can not form the basis upon which the court may grant a

motion to dismiss. Accordingly, Defendant's motion to dismiss the violation of VTL§§ 512 on this ground is DENIED.Defendant also moves to dismiss the charge of VTL § 512 on the grounds that it

is legally insufficient in that it fails to set forth non hearsay allegations of fact

supporting each and every element of the offense charged, as required by CPL § 100.40.

The People oppose the motion asserting that the STI's are legally sufficient. [*3]

It is undisputed that the necessary elements of VTL § 512 are operation of the

motor vehicle while the registration is suspended and/or revoked. It is also undisputed

that the element of suspension and/or revocation is supported by the hearsay

allegations of Officer Pitts in his supporting deposition.

However, unlike the more stringent requirements for sufficiency of other

accusatory instruments, the requirements for sufficiency in the case of a STI are more

relaxed.

The facial sufficiency requirements of a STI are set forth in Criminal Procedure

Law Section §100.40(2), which provides, in relevant part, that:

"A simplified information is sufficient on its face when, as

provided by CPL §100.25(1), it substantially conforms to the

requirements therefor .. ."

Criminal Procedure Law Section § 100.25(1) provides that a STI must be

substantially in the form prescribed by the Commissioner of Motor Vehicles. CPL§

100.25 subsection (2) provides that:

A defendant charged by a simplified information is,

upon a timely request, entitled as a matter of right

to have filed with the court, and served upon him, or

if he is represented by an attorney, upon his attorney, a

supporting deposition of the complainant police officer

or public servant, containing allegations of fact, based

either upon personal knowledge or upon information

and belief, providing reasonable cause to believe that

the defendant committed the offense or offenses charged.

(Emphasis added)

The Court of Appeals in the case of People v Key, 45 NY2d 111, 115-16, 408

NYS 2d 16, 19, restated this rule.

If a Defendant who has been charged by STI requests a supporting deposition, or

if the People voluntarily tender such a deposition, then the deposition must contain [*4]

allegations of fact based either upon personal knowledge or upon information and belief

which provide reasonable cause to believe that the Defendant committed the offense

charged. [People v Chittaranjans, 2000, 185 Misc 2d 871, 714 NYS 2d 650]

In People v Baback, 23 NYSd 189. 194, 295 NYS 2d 912, 917, the Court of

Appeals held that "the use of the Simplified Traffic Information is authorized where the

information is signed by an officer whose knowledge of the facts is based upon

information and belief."

However, the deposition supporting a Simplified Traffic Information, to the

extent it is based on information and belief, must contain a statement of the source of

that information and belief if it is to be sufficient on its face. [People v Lesnak, 165

Misc 2d 706, 709, 630 NYS 2d 459, 461; People v Noblett, 172 Misc 2d 826, 829, 660

NYS 2d 517, 519-20 (County Ct. 1997)

The supporting depositions of Officer Pitts, albeit hearsay, contain factual

averments sufficient to establish reasonable cause to believe that the Defendant

committed each and every element of the charged offenses. However, the supporting

deposition of the VTL § 512 charge does not contain a statement of the source of the

information and belief. The supporting deposition states "upon further investigation

def did have suspended reg for parking violations ..." The basis of the investigation is

not indicated and therefore the court does not know if the information was obtained

from the Department of Motor Vehicles or the City of Buffalo Parking Violations

Bureau. Accordingly, Defendant's motion for dismissal of the charge of VTL § 512 on

the grounds of legal insufficiency is GRANTED.

[*5]

________________________________

HON. E. JEANNETTE OGDENBuffalo City Court Judge

DATED: Buffalo, New York

October 25, 2013