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People v. Lovette

Criminal Court of the City of New York, New York County

March 31, 2017

The People of the State of New York
v.
Jame Lovette, Defendant.

          For the Defendant: The Legal Aid Society (Andrew Tso, Esq.)

          For the People: Cyrus R. Vance, Jr., District Attorney, New York County (Travis Wolfe, of counsel)

          David Frey, J.

         The defendant is charged with one count each of Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL § 511[2][a][ii]), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL § 511[1][a]) and Unlicensed Driving (VTL § 509[1]).

         The defendant, in an omnibus motion dated February 14, 2017, seeks dismissal of the Aggravated Unlicensed Operation of a Motor Vehicle in the Second and Third Degree charges, and permission to file additional motions in the future. The People served their motion response on or about February 28, 2017. The People provided the defendant a Corroborating Affidavit, a New York State Department of Motor Vehicles Certified Abstract of Driving Record, and Proof of Mailing on or about September 9, 2016.

         The defendant's omnibus motion is decided as follows:

         FACIAL SUFFICIENCY

         The defendant's motion to dismiss the top two charged counts for lack of facial sufficiency is denied. Criminal Procedure Law (CPL) 100.40(1) states that an information is sufficient on its face when it substantially conforms with the requirements of CPL 100.15; the allegations provide reasonable cause [1] to believe that the defendant committed the offense charged; and the non-hearsay allegations in conjunction with any supporting deposition establish, if true, every element of the offenses charged and the defendant's commission thereof. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." [2]

         The police officer in his misdemeanor complaint stated, "I observed the defendant operating a motor vehicle (the key was in the ignition, the engine was running and the defendant was behind the wheel) on a public highway, namely the above location (southeast corner of Amsterdam Avenue and West 12th Street). I conducted a computer check of the records of the New York State Department of Motor Vehicles and determined that the defendant's license was revoked and had not been reinstated. I know that the defendant knew his driver's license had been revoked because the computer check revealed that the defendant's license was revoked for refusing to submit to a chemical test, and prior to such revocation being imposed the Department of Motor Vehicles sent to the defendant's last known address an order which states, 'You must pay a $25 suspension termination fee before your driver's license or privilege can be restored.'"

         On or about September 9, 2016, the People converted the misdemeanor complaint into an information when they filed the arresting officer's corroborating affidavit, and a Certified New York State (NYS) Department of Motor Vehicles (DMV) Abstract and Proof of Mailing. The defendant contends that the DMV Abstract and Proof of Mailing are defective. The defendant is incorrect.

         DMV ABSTRACT

         The defendant asserts correctly that the DMV abstract must be properly authenticated in accordance with CPLR 4540(b). That statute provides:

Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, or with a facsimile of the signature of, the clerk of a court having legal custody of the record, and, except where the copy is used in the same court or before one of its officers, with the seal of the court affixed; or signed by, or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed; or signed by, or with a facsimile of the signature of, the presiding officer, secretary or clerk of the public body or board and, except where it is certified by the clerk or secretary of either house of the legislature, with the seal of the body or board affixed. If the certificate is made by a county clerk, the county seal shall be affixed.

         But then the defendant mistakenly relies on People v Smith, 258 A.D.2d 245 (4th Dep't 1999), for the proposition that the abstract was improperly authenticated because it did not have the DMV Commissioner's raised seal. The defendant has apparently overlooked that (a) the Smith decision applied to grand jury and trial evidence, not misdemeanor pleadings (People v Brown, 15 Misc.3d 1143 [A] [NYC Crim Ct, NY Co. 2007] [ Mandelbaum, J.]), and (b) since the Smith decision was issued in 1999, NYS DMV established a new procedure to authenticate abstracts [3] (People v Azpuru, 2002 NY Slip Op 50341(U) [NYC Crim Ct, NY Co. 2002]). The new procedure provided for the seal and certification to be electronically placed on each page ...


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