SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
December 27, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
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This opinion is uncorrected and will not be published in the printed Official Reports.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of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner."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 Traffic Law § 505 ; Kalamadeen v Singh, 63 AD3d 1007, 1009 ). Such proof suffices to establish that defendant knew or had reason to know that his driver's license was suspended at the time of his arrest.
Accordingly, so much of the judgment as convicted defendant of aggravated unlicensed operation of a motor vehicle in the third degree is affirmed.
Steinhardt, J.P., and Pesce, J., concur.
Weston, J., dissents in part and concurs in parts in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS PRESENT STEINHARDT, J.P., PESCE and WESTON, JJ. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DECIDED TERRELL AUSTIN, Appellant.
NO. 2009-280 K CR
Weston, J., dissents in part and concurs in part and votes to reverse so much of the judgment as convicted defendant of aggravated unlicensed operation of a motor vehicle in the third degree in a separate memorandum:
I agree with the majority 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 should be dismissed as abandoned. However, in my opinion, the conviction for aggravated unlicensed operation of a motor vehicle in the third degree was against the weight of the evidence and therefore so much of the judgment as convicted defendant of that offense should be reversed and the charge dismissed.
There is insufficient proof to demonstrate that defendant knew or should have known that his license had been suspended, which is an essential element of the charge (see Vehicle and Traffic Law § 511  [a]). Here, the People relied upon defendant's three-page driving abstract, certified and signed by Sharon Greene, principal clerk of certified records for the Department of Motor Vehicles (DMV), and an order of suspension dated June 23, 2003, to establish that a letter sent from the DMV notifying defendant of a suspension order was properly mailed to defendant in order to invoke the presumption that the letter was received by defendant (see People v Outram, 22 Misc 3d 131[A], 2009 NY Slip Op 50162[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 ), I find that the evidence failed to establish defendant's guilt. The People's witness from the DMV, did not demonstrate any personal knowledge regarding the procedure for mailing suspension orders in 2003. The witness began her employment with the DMV in 2005, and did not testify as to the DMV procedure and practice for mailing such orders in 2003. In addition, the address the notice was sent to was not an address provided to the DMV by defendant, nor was it the address listed on the certified abstract. Rather, the notice was sent to a similar address, omitting information, which is insufficient to avail the People of the presumption.
The proof offered at trial of where defendant lived consisted of a DMV abstract which listed defendant's address as 519 Willoughby Avenue, Apartment 1B, and a New York State identification card, issued by the DMV, which listed his address as 71 Stuyvesant Street, Apartment 1C [FN1]. Presumptively, both of these are addresses provided by defendant to DMV; both contain an apartment number. However, according to the testimony of the DMV employee, the letter was sent to 71 Stuyvesant Avenue, without any apartment listed at all. While the DMV is entitled to rely upon the address provided by defendant, this letter was not sent to an address provided by defendant and cannot reasonably be said to have been received by him as a result.
Consequently, the People did not establish that the suspension order was mailed to defendant and, thus, the proof was insufficient to establish defendant's guilt of the offense of aggravated unlicensed operation of a motor vehicle in the third degree. Decision Date: December 27, 2011 Footnotes Footnote 1:It should be noted while there is a Stuyvesant Avenue in Brooklyn, New York, there is no such place as Stuyvesant Street, which is the location listed on defendant's identification card issued by the DMV.
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