[*1]
People v Benitez (Victor)
2014 NY Slip Op 50987(U) [44 Misc 3d 129(A)]
Decided on June 18, 2014
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 18, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2012-1541 K CR

The People of the State of New York, Respondent,

against

Victor Benitez, Appellant.


Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William Miller, J.), rendered June 11, 2012. The judgment convicted defendant, upon his plea of guilty, of aggravated unlicensed operation of a motor vehicle in the third degree.

ORDERED that the judgment of conviction is affirmed.

On June 11, 2012, defendant pleaded guilty to aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). On appeal, defendant contends that the judgment of conviction should be reversed because so much of the accusatory instrument as charged him with aggravated unlicensed operation of a motor vehicle in the third degree is jurisdictionally defective since the factual allegations contained therein failed to provide reasonable cause to believe that he knew, or had reason to know, that he was driving with a suspended or revoked driver's license.

Whether a defendant knew, or should have known, that his New York State license or driving privilege had been suspended or revoked is an element of the offense in question (Vehicle and Traffic Law § 511 [1] [a]), and the failure to allege an element of a crime in an information is a nonwaivable jurisdictional defect, reviewable on appeal even in the absence of a timely objection (see People v Casey, 95 NY2d 354, 364 [2000]). A challenge to the facial sufficiency of an accusatory instrument based on nonwaivable jurisdictional defects is not forfeited by a guilty plea (see People v Dreyden, 15 NY3d 100 [2010]; People v Kalin, 12 NY3d 225 [2009]; People v Konieczny, 2 NY3d 569 [2004]; People v Keizer, 100 NY2d 114, 122 [2003]). Therefore, defendant's contention must be reviewed by this court as a question of law (see CPL 470.05 [2]), despite his failure to raise it in the Criminal Court (see People v Alejandro, 70 NY2d 133 [1987]).

In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumas, 68 NY2d 729, 731 [1986]). The law does not require that the most precise words or phrases which most clearly express the thought be used in an information, but only that the crime be sufficiently alleged so that the defendant can prepare himself for trial, and so that he will not be tried again for the same offense (see People v Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d at 575; People v Casey, 95 NY2d at 360).

The factual allegations of the information in this case state that the police officer [*2]conducted a check of the official, computerized, New York State Department of Motor Vehicles' driving record relating to defendant and observed that the record indicates that defendant's license had been suspended at the time of the incident due to defendant's failure to answer or appear in response to a traffic summons. The officer further alleged that all such summonses contain the warning that, "If you don't answer this ticket by mail within 15 days your license will be suspended," and that the "Department of Motor Vehicles mails a notice of suspension to any such person at their last known address." We find that the foregoing allegations were sufficient, for pleading purposes, to establish prima facie the element of the charge that defendant knew, or had reason to know, that his New York State license or driving privilege had been suspended or revoked (see Vehicle and Traffic Law § 511 [1], [2]; People v Maldonado, 42 Misc 3d 81 [App Term, 2d, 11th & 13th Jud Dists 2013]; People v Austin, 34 Misc 3d 136[A], 2011 NY Slip Op 52402[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v Crawley, 32 Misc 3d 131[A], 2011 NY Slip Op 51334[U] [App Term, 1st Dept 2011]; see also People v Sanago, 35 Misc 3d 143[A], 2012 NY Slip Op 50943[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Defendant's remaining arguments lack merit. Consequently, we find that so much of the accusatory instrument as charged defendant with aggravated unlicensed operation of a motor vehicle in the third degree is facially sufficient.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.


Decision Date: June 18, 2014