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People v Branch
2014 NY Slip Op 51297(U) [44 Misc 3d 1224(A)]
Decided on August 7, 2014
Criminal Court Of The City Of New York, Kings County
Montelione, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through January 13, 2016; it will not be published in the printed Official Reports.


Decided on August 7, 2014
Criminal Court of the City of New York, Kings County


The People of the State of New York

against

David Branch, Defendant.




2014KN003357



For the People: Kenneth P. Thompson, District Attorney (By Daniel Costello, Esq.



For David Branch: The Legal Aid Society (By Anne Oredeko, Esq.)


Richard J. Montelione, J.

Defendant moves to dismiss the accusatory instrument herein, pursuant to CPL § 170.30, as facially insufficient. For the reasons stated herein, Defendant's motion to dismiss the count alleging violation of VTL § 511(1)(a) is granted. Although not included in Defendant's Notice of Motion, his papers also contain an argument that certain statements he allegedly made be precluded because of the People's failure to provide timely notice pursuant to CPL § 710.30(1)(a). Although the preclusion argument is now moot with regard to the VTL § 511(1)(a) charge, because the Court's file notations show that statement notice was served and filed at arraignment, and the file contains a copy of such notice, there were never any grounds to seek such relief for that charge. To the extent the argument to dismiss was considered regarding the remaining VTL 509(1) charge, it is denied.

PROCEDURAL BACKGROUND

In the afternoon of January 12, 2014, the arresting officer responded to the scene of an accident. Defendant allegedly was one of the drivers involved in the accident. The arresting officer ran a computer check of the Department of Motor Vehicles ("DMV") driving records and learned that Defendant's driving privileges had been suspended for failure to pay child support. Defendant was arrested and charged with violating VTL § 509(1) (Unlicensed Operator, a violation) and VTL § 511(1)(a) (Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, an unclassified misdemeanor).

RELEVANT STATUTES

VTL § 509(1) provides "no person shall operate or drive a motor vehicle upon a public highway of this state . . . unless he is duly licensed pursuant to the provisions of this chapter." A violation of this section is not a crime, and is punishable by "a fine of not less than seventy-five [*2]nor more than three hundred dollars, or by imprisonment for not more than fifteen days. . . ." VTL § 509(11).

A violation of VTL § 511(1)(a), however, is an unclassified misdemeanor. A violation of the section has a mandatory punishment set forth in VTL § 511(1)(b): "(i) a fine of not less than two hundred dollars nor more than five hundred dollars, or (ii) a term of imprisonment of not more than thirty days, or (iii) both such fine and imprisonment."

Because of these increased, and mandatory, punishments, the law places a greater burden on the prosecution to charge and prove a case under VTL § 511(1)(a) than under VTL § 509(1). VTL 511(1)(a) provides:



A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree when such person operates a motor vehicle upon a public highway while knowing or having reason to know that such person's license or operating such motor vehicle in this state . . . is suspended, revoked or otherwise withdrawn by the commissioner.



There are two essential elements that must be proven for a person to be found guilty of this offense. First, his or her license must have been suspended, revoked or otherwise withdrawn, and second, he or she operated a motor vehicle "while knowing or having reason to know" of such suspension, revocation or withdrawal.

CPL § 100.40 provides, in relevant part, that an information is sufficient on its face when the "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." CPL § 100.40(1)(c).

At arraignment, the People filed a complaint sworn to by the arresting officer. In it, the officer avers (1) that his check of the DMV records showed that Defendant's license had been suspended for failure to pay child support, and (2) that the DMV mails a notice of suspension to "any such person at their last known address." The People also filed a copy of Defendant's driving record abstract. That abstract reflects that Defendant's driver's license had been suspended on May 6, 2011, for failure to pay child support.

The abstract contains the following certification:



This is to certify that this document is a true and complete copy of an electronic record on file in the New York State Department of Motor Vehicles, Albany, New York. The record was made in the regular course of New York State Department of Motor Vehicles daily business. It is the business of the New York State Department of Motor Vehicles to create and maintain the records of drivers in the state of New York. Entries in this document are made at the time the recorded transactions or events took place or within a reasonable time thereafter. The person who reports the information is under a business duty to do so accurately.



The abstract adequately supports the arresting officer's sworn statement that Defendant's license had been suspended for failure to pay child support, and in turn, provides non-hearsay support for the first element of the offense charged — i.e., that Defendant's license had been suspended. E.g., People v. Brown, 15 Misc 3d 1143 (A) (Crim. Ct. NY County 2007). It does not, however, appear to support the second element of the offense charged — i.e., that Defendant knew or had reason to know of such suspension, which is clearly not within the arresting officer's personal knowledge. Therefore, unless the People can establish non-hearsay support for this second element, the complaint is insufficient on its face to plead a violation of VTL § 511(1)(a).

Although at first blush, it may appear that requiring non-hearsay evidence that a defendant "knew" of a suspension imposes an impossible burden of showing "scienter" before conversion, the statutory standard of "knowing or having reason to know" about the suspension is an objective standard.

Both sides direct the Court to VTL § 214 and lines of cases interpreting that section. VTL § 214 may provide assistance in determining whether the scienter requirement of VTL § 511(1)(a) has been satisfied. VTL § 214 provides:



The production of a copy of the notice of suspension or revocation together with an electronically-generated record of entry of the suspension or revocation upon the appropriate driver's license or registration file of the department and an affidavit by an employee designated by the commissioner as having responsibility for the issuance of such suspension or revocation setting forth the procedure for the issuance and the mailing of such notice of suspension or revocation shall be presumptive evidence that such notice of suspension or revocation was produced and mailed in accordance with such procedures.



Thus, at trial, the People may establish that a defendant knew or should have known that his license had been suspended by filing, in addition to the DMV abstract, a copy of the notice allegedly sent to the defendant, along with an affidavit from an employee of the DMV setting forth the DMV's procedures for issuing and mailing such notices. The statute, does not however, address whether this procedure also applies in determining whether a complaint has been converted to an information pursuant to CPL § 100.40. As discussed below, the courts have divided on this point.

APPLICABILITY OF VTL § 214 AT THE PLEADING

STAGE

A number of courts have specifically approved this procedure at the pleading stage to convert a complaint into an information. People v. J.T., 13 Misc 3d 1212(A) (Crim. Ct. NY County 2006); People v. Pabon, 167 Misc 2d 214 (Crim. Ct. Bronx County 1995); People v. Garcia, 163 Misc 2d 862, (Crim. Ct. Bronx County 1989). See also, People v. Meyer, 177 Misc 2d 537 (App. Term. 2d Dept. 1998). Although this leaves open the question of whether the People must use this or some other procedure to properly plead scienter, the People must always provide non-hearsay evidence (or evidence which is an exception to the hearsay rule) regarding whether the defendant knew or "should have known" his or her license had been suspended, e.g., an admission by defendant, a plea taken in open court, or correspondence sent to defendant showing notice of suspension. This is because non-hearsay evidence that defendant "should have known" of a suspension will always provide an inference that defendant knew of the suspension, which satisfies whatever scienter requirement is needed for conversion.

Cases Holding Scienter Is A Trial Issue

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Some reported cases hold that a complaint charging VTL § 511(1) will be properly converted as long as the driving abstract shows that the defendant's license had been suspended. Essentially, these cases leave the scienter element as a matter of proof to be made at trial.

For example, in People v. Gabriel, 164 Misc 2d 473 (Crim. Ct. Queens County 1995), the court found that "the defendant's knowledge that his privilege to drive had been suspended is a question of fact at the time of trial and the satisfaction of Vehicle and Traffic Law § 214 is not a prerequisite for the conversion of a misdemeanor complaint to an information." Id. at 476. This case supports the contention that scienter need only be established at trial, and need not be supported by non-hearsay at the pleading stage.

In People v. Etienne, 192 Misc 2d 90 (Dist. Ct. Nassau County 2002), followed Gabriel, supra. The Etienne court held that:



since [VTL § 214] allows for the presumption of this element of "knowing or having reason to know" it is an issue of fact to be determined at trial.



This is a much more acceptable interpretation Vehicle and Traffic Law § 511(2)(a)(iv) and § 214 than has been presented by other courts. Typically, Vehicle and Traffic Law § 511(2)(a)(iv) misdemeanor information are dismissed because the scienter element is too burdensome to prove for purposes of conversion. However based on the obvious intent of the Legislature in its providing both the hearsay exception to service and the statutory presumption of scienter, this court has chosen to enforce the law. It should be noted, regardless of the statutorily created tools, that the constitutional rights of the defendant are still preserved by allowing him to confront witnesses at trial with regard to the issues of service and notice.



192 Misc 2d at 95 — 96.

In one of the few appellate decisions discussing the appropriate pleading standard for cases arising under VTL § 511(1)(a), the Appellate Term, Second Department held that because all traffic summonses contain a warning that "If you don't answer this ticket by mail within 15 days your license will be suspended," an allegation that the arresting officer conducted a check of DMV records and learned that the defendant's license had been suspended for failure to answer or appear in response a traffic summons was sufficient to satisfy the non-hearsay requirement of CPL § 100.40. People v. Benitez, 44 Misc 3d 129(A) (App. Term, 2d Dept. 2014). Benitez involved a license suspended for failure to answer a traffic summons that on its face noted failure to do so would necessarily engender a license suspension. The Appellate Term did not, however, address the situation where a license was suspended for a reason other than failure to respond to a traffic summons.Cases Holding That Scienter Must Be Alleged and Supported in the Information

Other cases hold that VTL § 214, while it provides a way for the prosecution to establish a presumption of scienter at trial, does not relieve the People of providing non-hearsay allegations regarding scienter in an information.

For example, in People v. Carlsons, 171 Misc 2d 943 (Sup. Ct. Nassau County 1997), the court reviewed grand jury minutes, and permitted the case to proceed on several of the charges against the defendant. However, it dismissed the charge of violation of VTL § 511(1) because in support of that charge, the district attorney had submitted only a driving abstract. The court held that



the DMV abstract . . . in and of itself, is insufficient proof of the defendant's knowledge of the suspension. Because of the absence of any affidavit concerning the procedure for mailing the notice of the suspension to the driver whose license was suspended, there was no evidence presented to the Grand Jury concerning the defendant's knowledge that his license was suspended. Accordingly the third count is legally insufficient and must be dismissed.



171 Misc 2d at 945.

In People v. J.T., 13 Misc 3d 1212(A) (Crim. Ct. NY County 2006), the court dismissed the VTL § 511(1)(a) charge against the defendant. The court noted that the "resolution of the [*3]motion turns on whether the documents submitted by the People are sufficient to corroborate the allegation in the complaint that defendant knew or had reason to know his license to drive had been suspended or revoked, which is an essential element of aggravated unlicensed operation." The court held that the abstract alone could not satisfy the scienter requirement but noted that it was not placing an undue burden on the People:



Thus, when charging a defendant with violating any subsection of VTL Section 511, the People need only file, in addition to the usual DMV abstract, a copy of the notice allegedly sent to the defendant, together with an affidavit from an employee of the DMV setting forth the DMV's procedures for issuing and mailing such notices. Courts have approved the use of this procedure at the pleading stage to convert the complaint into an information.



13 Misc 3d 1212(A) at 3 (citations omitted).

In People v. Brown, 15 Misc 3d 1143 (A) (Crim. Ct. NY County 2007), defendant Gonzalez was charged with violating VTL § 511(1). On facts very much like those in the case at bar, the complaint alleged that a computer check by the arresting officer had revealed that defendant Gonzalez's license had been suspended for failure to pay child support. The complaint alleged that the DMV sends a notice prior to suspending a license for failure to pay child support. The court held, however, that "these allegations, while providing reasonable cause to believe that defendant had reason to know of the suspension, are nevertheless hearsay, and thus insufficient." Id. The court, therefore, dismissed the charges because no affidavit or documentation was provided showing that the notice had been mailed to the defendant.

People v. Acevedo, 27 Misc 3d 889 (Crim. Ct. NY County 2010) appears to be on all fours with the case at bar. In Acevedo, the defendant's license had been suspended for failure to pay child support. The court held:



Defendant's license was not suspended for failure to answer a traffic summons, but rather for his alleged failure to answer a notice sent by the DMV. Yet the People failed to provide a copy of this notice, or an affidavit from an employee of the DMV setting forth the DMV's procedure for issuing and mailing such notices. As with defendant Gonzalez in Brown, supra, the only allegation supporting the element that Defendant had knowledge of his license being suspended is Police Officer Checa's "belief" based upon a computer check of DMV records. Because this allegation is based on facts of which Officer Checa has not personal knowledge, we find that the count of Aggravated Unlicensed Operation of a Motor Vehicle has been insufficiently alleged.



27 Misc 3d at 894 — 95.

LEGAL ANALYSIS

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On balance, the Court is persuaded by the line of cases holding that non-hearsay evidence that defendant knew or should have known of his suspension must be properly alleged and supported before a complaint can be converted to an information. Not all cases will require affidavits of the sort contemplated by VTL § 214. For example, if the defendant had previously taken a plea that encompassed a license suspension, he would have knowledge of that suspension, and a supporting affidavit or minutes of the allocution would suffice. If a defendant admitted, when stopped by the police or at any other time, that he knew his license had been suspended, he would have knowledge of the suspension, and a supporting affidavit likewise will convert the complaint to an information. There might well be other exceptions to the hearsay rule that the People could rely on to establish that a defendant knew, or had reason to know, that [*4]his license had been suspended.



Here, however, the People did not attempt to convert the complaint to an information using any documents other than the DMV abstract. The DMV abstract shows that Defendant's license was, in fact, suspended for failure to pay child support. The abstract gives no information regarding Defendant's receiving any notice of suspension. They may not, therefore, avail themselves of the presumption contained in VTL § 214. Nor have the People attempted to establish Defendant's knowledge in any other fashion, let alone with non-hearsay evidence or by way of an exception to the hearsay rule. This failure is fatal, and must result in dismissal of VTL § 511(1)(a).

The Court is not persuaded by the cases cited by the People. In its view, those cases turn primarily on convenience to the prosecution. For example, in Etienne, the court noted "[t]ypically, Vehicle and Traffic Law § 511(2)(a)(iv) misdemeanor informations are dismissed because the scienter element is too burdensome to prove for purposes of conversion." 192 Misc 2d at 95. See also, People v. Gabriel, 164 Misc 2d 473 (Crim. Ct. Queens County 1995).

On the other hand, the Court agrees completely with the holding in People v. Acevedo, supra. Unlike a suspension that follows from failure to respond to a traffic summons, a suspension for failure to pay child support depends on procedures of the DMV that are not within the personal knowledge of an arresting officer.



While one commentator has referred to the burdens placed on the prosecution by VTL § 511(1) as a "nightmare," (see, Practice Commentary to VTL § 214 in McKinney's Consol. Laws of NY [2005]), the section is not a nightmare or even a bad dream. Evidence of a non-hearsay nature, or evidence which is an exception to the hearsay rule can certainly be used to convert the complaint to an information. Through the objective standard showing that defendant "should have known" of the suspension, scienter can be inferred, and the complaint converted under both the scienter standard (defendant knew of the suspension) and the objective reasonable person standard (defendant should have known of the suspension).



Of course, this decision only deals with the issue of conversion, and the People continue to have the burden of proving all elements of the charges beyond a reasonable doubt. As discussed, the People failed to provide an affidavit pursuant to VTL § 214 showing Defendant received notice of his suspension, or any number of other devices, to convert the complaint to an information, which would also establish a prima facie showing that Defendant "knew or should have known" of his suspension.



Ultimately, scienter is a trial issue. But the right of a defendant to be prosecuted on an information that contains no hearsay allegations is fundamental. People v. Alejandro, 70 NY2d 133 (1987).

In short, the Court finds that the complaint herein contains only hearsay allegations regarding Defendant's knowledge whether his license had been suspended. As such, it is facially insufficient to plead a violation of VTL § 511(1)(a).



CONCLUSION



For the reasons stated above, Defendant's motion to dismiss the charge of violation of VTL § 511(1)(a) is granted. The motion to preclude Defendant's statements contained within the notice filed at arraignment is denied. This opinion shall constitute the Decision and Order of the Court.



Dated: Brooklyn, New York___________________________

RICHARD J. MONTELIONE,

Judge, Criminal Court