Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William L. McGuire, Jr., J.), rendered January 29, 2009.
People v Austin (Terrell)
Decided on December 27, 2011
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ
The judgment convicted defendant, upon a jury verdict, of driving while ability impaired, aggravated unlicensed operation of a motor vehicle in the third degree and unlicensed operation of a motor vehicle.
ORDERED that so much of the appeal as is from the portions of the judgment convicting defendant of driving while ability impaired and unlicensed operation of a motor vehicle is dismissed as abandoned; and it is further,
ORDERED that so much of the judgment as convicted defendant of aggravated unlicensed operation of a motor vehicle in the third degree is affirmed.
Defendant, convicted by a jury of several charges, limits his arguments upon this appeal to the propriety of his conviction of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511  [a]). Said statutory provision states, "A person is guilty ... when such person operates a vehicle upon a public highway while knowing or having reason to know that such person's license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner."
At the outset, it should be noted that defendant's challenge to the sufficiency of the information with respect to a failure to allege any facts establishing that he knew or should have known that his driver's license had been suspended, is properly before us as a subject for review. Whether defendant knew or should have known that his license was suspended was an element of the subject offense (Vehicle and Traffic Law § 511  [a]), and the failure to allege an element of a crime in an information has been deemed a non-waivable jurisdictional defect, reviewable on appeal even in the absence of a timely objection (see People v Casey, 95 NY2d 354, 364 ). However, a defendant who has failed to object to the hearsay nature of the factual allegations of an information in the trial court, will not be heard to complain on appeal that the factual allegations were hearsay (id. at 367). Because defendant in the case at bar failed to interpose either a timely objection or motion before the trial court addressing any hearsay defects, he has failed to preserve any issue in said regard (id.).
The subject information was facially sufficient with respect to alleging facts of an evidentiary character (albeit partly based on hearsay) supporting or tending to support the charge of aggravated unlicensed operation of a motor vehicle in the third degree (see CPL 100.15 ; Vehicle and Traffic Law § 511  [a]), providing reasonable cause to believe that defendant committed the offense charged (see CPL 100.40  [b]), and establishing, if true, every element of the offense charged, including the element of defendant's actual or constructive knowledge of the suspension of his license (see CPL 100.40  [c]). The complainant officer's allegations of having conducted a check of the official, computerized DMV driving record relating to defendant, of having observed its indication of a suspension of defendant's license at the time in question for failure to answer or appear in response to a traffic summons, and of a warning on all such summonses that "If you don't answer this ticket by mail within 15 days your license will be suspended," were sufficient to show, for pleading purposes, that defendant had the requisite knowledge under the statute (People v Espinal, 8 Misc 3d 1014[A], 2005 NY Slip Op 51103[U] [Crim Ct, NY County 2005]; see People v Michtavy, 32 Misc 3d 133[A], 2011 NY Slip Op 51442[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v Brown, 15 Misc 3d 1143[A], 2007 NY Slip Op 51129[U] [Crim Ct, NY County 2007] ["when a charge of aggravated unlicensed operation is premised upon 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"]; cf. People v Mayes, 19 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2008]; People v Crawley, 32 Misc 3d 131[A], 2011 NY Slip Op 51334[U] [App Term, 1st Dept 2011]). Also supporting the element of defendant's awareness of the suspension of his license was the officer's allegation, albeit based on hearsay, that the New York State Department of Motor Vehicles mails a notice of suspension to any such person at his or her last known address (cf. People v Outram, 22 Misc 3d 131[A], 2009 NY Slip Op 50162[U] [App Term, 2d, 11th & 13th Jud Dists, 2009]). While the proof at trial may require a stronger demonstration of a defendant's awareness of the suspension of his license, the allegations of the instant information are, for pleading purposes, to be given a fair and not overly restrictive or technical reading (see Casey at 360).
Defendant's challenge to the sufficiency of the proof at trial with reference to the element of his knowledge, or having reason to know, of the suspension of his license has not been preserved for appellate review. The Court of Appeals has observed, "To preserve for this court's review a challenge to the legal sufficiency of a conviction, a defendant must move for a trial order of dismissal, and the argument must be specifically directed' at the error being urged . . ." (People v Hawkins, 11 NY3d 484, 492 ; cf. CPL 470.05 ). In defense counsel's motions to dismiss, his arguments were not specifically directed at the sufficiency of the evidence pertaining to defendant's knowing, or having reason to know, of the suspension of his license, and we decline to review that contention in the exercise of our interest of justice jurisdiction (see CPL 470.15 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383, 410 ; People v Bleakley, 69 NY2d 490 ). Upon a review of the record, we find that the conviction of aggravated unlicensed operation of a motor vehicle in the third degree was not against the weight of the evidence. The People's witness, an employee of the Department of Motor Vehicles, testified that the notice to defendant that his license would remain suspended until he paid a $25 fee had been mailed to him at the address provided by defendant (see Vehicle and ...