People v Fontanez

[*1] People v Fontanez 2015 NY Slip Op 51176(U) Decided on August 11, 2015 Poughkeepsie City Ct Mora, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2015
Poughkeepsie City Ct

The People of the State of New York,

against

Richard Fontanez, Defendant.



15-68351



August J. Dumser, Esq., Sr. Assistant Public Defender
Dutchess County Public Defender
Attorney for the Defendant
11 Market Street, Suite 204
Poughkeepsie, NY 12601

Andrea Long, Esq., Senior Assistant District Attorney
Dutchess County District Attorney
236 Main Street
Poughkeepsie, NY 12601
Frank M. Mora, J.

Defendant has moved by way of a Notice of Motion, dated June 2, 2015, seeking various forms of relief. Defendant's motion is supported by the affirmation of August J. Dumser, Esq., Senior Assistant Public Defender, dated June 2, 2015. The People have responded by "Affirmation in Answer to Defendant's Notice of Motion" which is supported by the affirmation of Andrea Long, Esq., Senior Assistant District Attorney, dated June 23, 2015. Defendant is charged with aggravated unlicensed operation of a motor vehicle in the second degree, in violation of Vehicle and Traffic Law § 511(2)(a)(4), an unclassified misdemeanor, operating a motor vehicle on a public highway with improper plates in violation of Vehicle and Traffic Law § 402(4), operating an unregistered motor vehicle on a public highway in violation of Vehicle & Traffic Law § 401(1)(a), and operating a motor vehicle on a public highway without insurance in violation of Vehicle and Traffic Law § 319(1) - all traffic infractions. Now having duly deliberated on said motion and the People's answer to same, the Court hereby finds and determines the motion as follows:

1. That branch of the defendant's motion that seeks dismissal of the misdemeanor complaint [FN1] charging the defendant with aggravated unlicensed operation of a motor vehicle in the second degree in violation of Vehicle and Traffic Law § 511(2)(a)(4), on the grounds that the complaint is facially insufficient, is granted.

An accusatory instrument will be dismissed as facially insufficient if it fails to allege non-[*2]hearsay facts of an evidentiary nature that support or tend to support each and every element of the offense charged and the defendant's commission thereof. C.P.L. §100.15 (3); §100.40 (1)(c); People v. Alejandro, 70 NY2d 133 (1987).An information is sufficient on its face only if it contains non-hearsay factual allegations which, if true, establish every element of the offense and provide reasonable cause to believe the defendant committed the offense charged. C.P.L. § 100.15(3); 100.40 (1)(b),(c); People v. Casey, 95 NY2d 354 (2000).Of course, to be facially sufficient, an accusatory instrument need only establish a prima facie case and it need not establish guilt beyond a reasonable doubt. People v. Henderson, 92 NY2d 677 (1999); People v. Moncayo, N.Y.L.J., April 10, 1997, at 29, Col 4 [App Term, 2d & 11th Jud. Distr.]. The prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, supra at 680.Here, the complaint alleges that the defendant operated a motor vehicle while his license was suspended and then lists each of the suspensions alleging the same to be true "upon direct knowledge and information and belief being a NYSPIN readout of the defendant's NYS driver license." However, the list of suspensions provided by the officer is based upon hearsay. The complaint fails to include a certified copy of the defendant's abstract from the New York State Department of Motor Vehicles, thereby rendering the complaint facially insufficient and subject to dismissal. People v. Hansen Frias-Acevedo, 27 Misc 3d 889 (New York County 2010); People v. Clinkscales, 3 Misc 3d 333 (1st Dist. 2004)(a police officer's direct attestations of a defendant's driving record based upon an electronic review of DMV records must be supported by a certified record); People v. Rodriguez, 165 Misc 2d 684 (Queens County 1995)(Court found the information, along with the supporting deposition, namely a certified copy of the defendant's "Abstract of Driving Record," to meet the requirements for facial sufficiency); People v. Blake, 154 Misc 2d 660 (Kings County 1992).

This Court now adopts the holding that if the People fail to provide a certified abstract of the defendant's driving record, or other supporting deposition from the New York State Department of Motor Vehicles providing non-hearsay allegations to support the charge [FN2] , and the defendant moves to dismiss the misdemeanor complaint charging him with aggravated unlicensed operation of a motor vehicle on the grounds that the accusatory instrument is defective, the motion must be granted. People v. Blake, 154 Misc 2d 660, 663 (Kings County 1992); see, People v. Mayes, 19 Misc 3d 48, 49 (App. Term 2d Dept. 2008)[where two informations and supporting documents charging defendant with aggravated unlicensed operation of a motor vehicle in the second degree had included certified copies of the DMV driver abstract, the People satisfied the statutory standards for facial sufficiency under C.P.L. §100.15, §100.40(1). The Court also found that the People proved the element of "knowledge" in that a certified driving abstract was entered into evidence]; People v. Clinkscales, supra; see, People v. Hansen Frias-Acevedo, supra; People v. Rodriguez, supra. In short, a certified abstract or other non-hearsay affidavit from the Department of Motor Vehicles attesting to the suspension of the defendant's license must accompany the misdemeanor complaint charging Vehicle and Traffic Law § 511 in order to survive a motion to dismiss for facial insufficiency.

The People rely, in part, on People v. Rivera, 32 Misc 3d 1209(A) (2011) in support of their [*3]argument that the accusatory instrument is facially sufficient.[FN3] However, Rivera is inapposite. The focus in the Rivera case was upon whether the People had established that the driver, a Pennsylvania resident with a suspended Pennsylvania license, knew or should have known that as a result of his Pennsylvania suspension, he was not licensed to drive in New York, not that the accusatory was based upon hearsay allegations. Here, only in part, does the defendant argue that "[T]he prosecution is relying on hearsay to establish that the defendant knew or should have known that his license was suspended". The defendant's other argument in seeking to dismiss the matter is that it is insufficient because it contains hearsay. Dumser affirmation, dated June 2, 2015, ¶ 15. Failure by the People to file a certified copy of the defendant's Department of Motor Vehicles driver abstract with the misdemeanor complaint providing non-hearsay allegations of the defendant's suspensions to support Police Officer Simons reading of the NYSPIN report is fatal. People v. Pierre, 157 Misc 2d 812 (New York County 1993). It is indisputable that the officer is not the source providing the suspension information, yet the complaint still relies upon this hearsay to fulfill the elements of the crime in charging defendant with aggravated unlicensed operation of a motor vehicle in the second degree. As such, the misdemeanor complaint charging the defendant with aggravated unlicensed operation of a motor vehicle in the second degree, in violation of V.T.L. 511(2)(a), is dismissed. C.P.L. §100.15; §100.40.

This Court now turns to the relief set forth in the defendant's motion as it pertains to the remaining charges set forth in the simplified traffic informations: aggravated unlicensed operation of a motor vehicle in the second degree in violation of Vehicle and Traffic Law 511(2)(a)[FN4] , improper plates in violation of Vehicle and Traffic Law § 402.4, unregistered motor vehicle in violation of Vehicle & Traffic Law § 401.1(a), and operating a vehicle without insurance in violation of Vehicle and Traffic Law § 319.4:

2. That branch of the defendant's motion that seeks discovery and inspection is granted to the extent that there exists unanswered discovery demands. The People are reminded of their continuing obligation to comply with Criminal Procedure Law § 240.60.

3. That branch of the defendant's motion that seeks compliance by the People pursuant to Brady v. Maryland, 373 U.S. 83 (1963) is granted, and the People are reminded of their duty to provide the defense with all material required pursuant to Brady and its progeny, including material impeachment evidence. Brady v. Maryland, 373 U.S. 83 (1963).

4. That branch of the defendant's motion that seeks to suppress the People from cross-examining the defendant on all prior convictions or vicious, criminal or immoral acts should the [*4]defendant decide to testify on his own behalf, is denied. However, a Sandoval hearing is granted upon consent [Long affirmation, dated June 23, 2015, unpaginated], and same will be held immediately prior to trial. People v. Sandoval, 34 NY2d 371 (1974). The People are directed to notify the defendant of specific instances of his prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge which the prosecutor intends to use at trial for the purposes of impeaching his credibility immediately prior to trial. C.P.L. § 240.43; People v. Ventimiglia, 52 NY2d 350 (1981).

5.That branch of the defendant's motion that seeks leave to file additional motions is granted, to the extent that they are filed in accordance with C.P.L. § 255.20.

ORDERED, that the defendant's motion to dismiss the misdemeanor complaint charging him with aggravated unlicensed operation of a motor vehicle in the second degree in violation of V.T.L. § 511(2)(a) is granted in its entirety.

SO ORDERED.

Dated:August 11, 2015

Poughkeepsie, New York

______________________

FRANK M. MORA

CITY COURT JUDGE

Footnotes

Footnote 1:Referred to in defendant's motion as an "information".

Footnote 2:Or hearsay that is admissible because it falls within one of the exceptions to the evidentiary rules on hearsay. People v. Casey, 95 NY2d 354 (2000); People v. Brown, 15 Misc 3d 1143(A)(New York County 2007).

Footnote 3:The People argue in opposition to the motion to dismiss for facial insufficiency that the "driving abstract is enough to indicate cause to believe the defendant had reason to know his license was suspended." Long affirmation, dated June 23, 2015, unpaginated & unnumbered paragraphs. However, the People did not file a certified DMV driver abstract with the instant misdemeanor complaint, even though they rely upon People v. Rodriguez, 165 Misc 2d 684 (Queens County 1995) to support their argument. In Rodriguez, the Court found the information, along with the supporting deposition, namely a certified copy of the defendant's "Abstract of Driving Record," to be sufficient to meet the requirements for facial sufficiency.

Footnote 4:The simplified traffic information ("STI") charging defendant with aggravated unlicensed operation of a motor vehicle in the second degree survives the instant motion to dismiss. C.P.L. §100.50; People v. Matozzo, 47 Misc 3d 1212(A) (Nassau County 2015); People v. Gibbs, 35 Misc 3d 1244(A) (Bronx County 2012); People v. Flood, 25 Misc 3d 843 (Nassau County 2009); People v. Green,192 Misc 2d 296 (Nassau County 2002).