The defendant, Juan Espinal, is charged with criminal possession of a forged instrument in the third degree in violation of Penal Law ("PL") § 170.20, offering a false instrument for filing in the second degree in violation of PL § 175.30, aggravated unlicenced operation in the second degree in violation of Vehicle and Traffic Law ("VTL") § 511(2)(a)(iv), and unlicenced driving in violation of VTL § 509(1). The defendant moves to dismiss the information as facially insufficient and for other procedural relief.

"A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument." PL § 170.20. A forged instrument is "a written instrument which has been falsely made, completed or altered." PL § 170.00(7). Subdivision one of PL § 170.00 defines a written instrument as "any instrument or article . . . used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person." Finally,

[a] person 'falsely makes' a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible [*2]maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof.

PL § 170.00(4).

The purported license plate is clearly a written instrument. Vehicle and Traffic Law ("VTL") § 402(1) provides that

[n]o person shall operate, drive or park a motor vehicle on the public highways of this state unless such vehicle shall have a distinctive number assigned to it by the commissioner and a set of number plates issued by the commissioner with a number and other identification matter if any, corresponding to that of the certificate of registration conspicuously displayed, one on the front and one on the rear of such vehicle, each securely fastened. . . .

(Emphasis added). The statute also prohibits the operation or driving of an automobile without "having displayed thereon number plates proper for such vehicle under the provisions of " the Vehicle and Traffic Law. VTL §§ 402(4) (6).

The purpose of the license plates (number plates) is to provide information to the police and the public for, among other reasons, identification of the automobile. Froslid v. Huts, 20 AD2d 498 (2nd Dept. 1964) appeal dismissed 14 NY2d 722 (1964); People v. MacWilliams, 91 AD 176 (1st Dept. 1904). The privilege granted a person possessing license plates issued by the State of New York, is to allow the owner of the automobile to "operate, drive, or park" the automobile within New York State. Therefore, license plates fall within the definition of a "written instrument" as set forth in PL § 170.00 (1). The licence plate would qualify as a forged instrument if purported to be an authentic creation of the New York State Department of Motor Vehicles, but is not authentic because the DMV did not authorize its creation.

Part 15 of the New York Compilation of Rules and Regulations ("NYCRR") sets forth the regulations promulgated by the Commissioner of the DMV. 15 NYCRR § 17.9 enumerates five conditions under which one of the two required license plates may be metallic. That single metallic plate must be accompanied by a facsimile issued by the DMV. Subdivision (e) of this section provides that "[a] replacement facsimile of such second number plate is obtained from an office of the Department of Motor Vehicles and is properly completed and displayed on the dashboard or passenger-side window visor of the vehicle in a manner so that it is visible throughout the windshield from the outside of the vehicle." Thus, if the purported license plate is not a replacement facsimile obtained from an office of the Department of Motor Vehicles, its creation would not have been authorized by the DMV and it would qualify as a forged instrument.

An information is facially sufficient if it contains non-hearsay facts of an evidentiary character which establish every element of the crime charged, as well as the defendant's commission of the crime. Criminal Procedure Law § 100.40(1)(c). An information which sets forth the elements in a conclusory fashion is facially insufficient. People v. Dumas, 68 NY2d 729 (1986).

The facts set forth in the information fail to meet the requirements of a facially sufficient charge of criminal possession of a forged instrument. While the facts set forth sufficiently establish that the laminated piece of paper on the front of the vehicle in which the defendant was seated was not a "true New York State license plate" because such a license plate "is made of metal and has no plastic covering or lamination," the facts fail to establish that it was not a true replacement facsimile. The information contains no facts regarding the makeup of a true replacement facsimile and therefore it cannot be determined whether the laminated piece of paper was not a true replacement facsimile.

A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument. PL 170.20. In order to make the charge facially sufficient, the complaint must allege facts establishing that the defendant possessed an instrument that was, in fact, forged, that the defendant had knowledge that the instrument was forged, and that he [*3]possessed the instrument with intent to defraud, deceive, or injure another. People v. Vesprey, 183 AD2d 212, 217 (1st Dept. 1992).

There are no allegations in the complaint that the numbers displayed on the "replacement" plate do not accurately match the numbers on the metallic plate or are not consistent with the numbers assigned by the DMV to identify that vehicle. Thus, although defendant may have violated a requirement of the DMV, as to the acquisition and display of a replacement plate, there is no basis for the court to infer that defendant intended to defraud or deceive anyone.

The defendant's motion to dismiss the first count of the information, charging the defendant with criminal possession of a forged instrument in the third degree, is granted.

Just as there are no facts alleged in the information from which it may be inferred that the laminated piece of paper on the front of the automobile was a forged instrument, there are no facts alleged from which it may be inferred that it contained a false statement or false information. Additionally, there are no facts set forth in the information which demonstrate that the defendant offered or presented "the replacement" "to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant." Indeed, this charge appears to have no rational relationship to the facts alleged in the information.

The defendant's motion to dismiss the second count of the information, charging the defendant with offering a false instrument for filing in the second degree, is granted.

A person is guilty of the crime of aggravated unlicensed operation of a motor vehicle in the second degree, in violation of VTL 511(2)(a)(iv), when he

operates a motor 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



and that "such person has in effect three or more suspensions, imposed on at least three separate dates, for failure to answer, appear or pay a fine." Therefore, the information must set forth non-hearsay allegations which establish that the defendant's license has been suspended on three separate occasions and that the defendant knew or should have known that his license was suspended.

The information alleges that the deponent did a computer check of the DMV and that "the computer check revealed that defendant's license was suspended for failure to answer a New York summons." The information also states that "all such summonses have printed on them, 'If you do not answer this ticket by mail within fifteen (15) days your license will be suspended.' The suspension occurs automatically (by computer) within 4 weeks of the defendant's failure to answer."

The DMV abstract which was filed and served establishes that the defendant's license had been suspended for five violations on four dates. The abstract falls squarely within the common-[*4]law public documents exception to the hearsay rule and, when properly authenticated, is admissible as a non-hearsay document. People v. Smith, 258 AD2d 245 (4th Dept.), lv. den. 94 NY2d 829 (1999).

Although the process of certification was found deficient in People v. Smith, supra, the Department of Motor Vehicles modified its procedure for certification to cure the defects found by the Smith court. See People v. Cartegena, NYLJ 5/5/00, p.29, col.2 (New York Co. Crim. Ct.); People v. Baker, (Oneida County Ct. Indictment No. 99.341, February 3, 2000; People v. Gill, (New York County Criminal Court, Docket No. 99NY103751, April 26, 2000, AP 5). The decision of the Appellate Division, in People v. Sikorski, 280 AD2d 414 (1st Dept. 2001) does not stand for the proposition that the DMVs modified procedure has failed to cure the deficiency found in People v. Smith, because the conviction in Sikorski was rendered on May 26, 1998. Thus, the Sikorski court was addressing the pre-modification procedure for certification when it disapproved of and modified the conviction in the court below.

In the present case, the abstract was certified in March, 2005, presumably in accordance with the modified procedure, and, thus, may be accepted as a properly certified public record pursuant to CPLR 4540 or as a common-law public document.

Nor is the charge of aggravated unlicensed driving facially defective for lack of factual allegations demonstrating defendant's awareness of his license suspension. Although there are several ways to show that the defendant had knowledge of such suspension, one such way is to allege, as does the complaint here, that the defendant's license had been suspended for failure to answer summonses and that such summonses contained language informing the recipient that a failure to answer within fifteen days will result in a license suspension.

While proof at trial may require a stronger demonstration of defendant's awareness of the suspension of his license, for pleading purposes, and being mindful of the Court of Appeals admonition that pleadings should be given a fair and not overly restrictive or technical reading (People v. Casey, 95 NY2d 360 [2000]), reliance upon the advice printed on every summons permits a reasonable inference that the defendant knew, or should have known his license had been suspended. See, People v. Inserra, 4 NY2d 30 (2004).

Defendant's motion, to dismiss the charge of aggravated unlicensed driving in the second degree, is denied.

The defendant moves to dismiss the fifth count, unlicensed driving. A person violates VTL § 509(1) by operating a motor vehicle without being duly licensed. The defendant's lack of a valid license to drive is adequately supported, for pleading purposes, by the DMV abstract which, as discussed above, is admissible as a public document which has been properly certified.

Defendant's motion to dismiss this charge is, therefore, denied.

Defendant's motion to suppress requires a Dunaway/Mapp hearing.

The use, on cross examination, of defendant's prior bad acts is referred to the trial court.

This opinion constitutes the decision and order of the court.

Dated: New York, New York___________________________

July 14, 2005 Gerald Harris