Criminal Court of the City of New York, Bronx County, December 11, 2023

Darcel D. Clark, District Attorney (Akeem Williams of counsel), for the People.

The Bronx Defenders (Cristine Oh and Urooj Khan of counsel) for defendant.

On November 28, 2023, defendant Manuel Luja was charged with and arraigned on Vehicle and Traffic Law §§ 1192 (1) (driving while impaired); 1192 (2) (driving while intoxicated per se); and 1192 (3) (driving while intoxicated). In the accusatory instrument the arresting police officer is alleged to have observed defendant seated behind the steering wheel of a white 2004 Ford van with a "key in the ignition, engine running, headlights on, and parked on a public roadway." The defendant is said "to have watery eyes, slurred speech, [sic] unsteady on his feet, and [had] a strong odor of alcoholic beverage emitting from [defendant's] breath." Additionally, a chemical analysis test taken of defendant was served on defendant and filed with the court. The chemical analysis test revealed a blood alcohol content of .16 of one per centum by weight.

As a result, pursuant to Vehicle and Traffic Law § 1193 (2) (e) (7) (a), the court promptly suspended defendant's driving license pending prosecution. Once the court issued a suspension order, it determined that: (1) the accusatory instrument conformed with CPL 100.40; and (2) reasonable cause existed to believe that the driver operated a motor vehicle with ".08 of one percent or more by weight of alcohol in his or her blood as was shown by chemical analysis of such person's blood, breath, urine or saliva." (Vehicle and Traffic Law § 1193 [2] [e] [7] [b]; Matter of Vanderminden v Tarantino, 60 AD3d 55 [3d Dept 2009], lv denied 12 NY3d 708 [2009].) Defendant therefore requested a "hardship hearing" to be conducted on November 30, 2023. On November 30, 2023, defense counsel requested another adjournment date to prepare for the hearing. The matter was adjourned to December 4, 2023. On December 4th and December 5th of 2023, defendant's hardship hearing was conducted.{**82 Misc 3d at 471}

At the hardship hearing, defendant was the sole witness produced to testify. Defendant testified that he lives with his uncle and aunt in the Bronx. He is self-employed with no employees. He performs general construction work including electrical, sheetrock and painting, delivers construction material from Home Depot to client homes, and performs garbage carting. Defendant testified that his work requires traveling to areas such as Mount Vernon, Long Island, and New Jersey. He will travel to a location once he receives a text message containing the location of the jobsite from a client. The defendant did not testify that he has set work hours or a set place of employment.

At the commencement of the hearing, defendant proffered two business cards into evidence claiming the two entities listed were his businesses. However, defendant admitted that neither Innovative Electric Services nor Innovative Services LLC were legally registered or real companies. Instead, defendant testified that he is self-employed and that the business names are used to "embellish" the cards so he can obtain work. Curiously, the business cards were devoid of defendant's name. Instead, the card for Innovative Services LLC contained the name "Manuel Kany." As to the listed name "Kany," defendant stated that in his language "Kany" means "it's me." Consequently, the issues surrounding the offered business cards weigh against defendant's credibility on the existence and ownership of the businesses and his connection to those businesses.

To add to the weight of defendant's testimony, defendant made sworn statements inconsistent with his record of arrest and prosecution. Specifically, when defendant was asked whether he was ever arrested or convicted of a crime, defendant answered "No." Contrariwise, defendant's criminal arrest record showed that in 2016 he pleaded guilty to 8 USC § 1325 (a) (2) (illegal entry). Although "[i]mmigration violations, as considered in the matter sub judice, are not crimes but rather are civil matters," violations of 8 USC § 1325 (a) constitute a criminal offense. (People ex rel. Wells v DeMarco, 168 AD3d 31, 44 [2d Dept 2018].) Here defendant's guilty plea to 8 USC § 1325 (a) resulted in his serving a 12 day jail sentence. Consequently, defendant's record of arrest and prosecution directly contradicts his testimony.

Also introduced as evidence were three screenshots allegedly from defendant's cellphone. The screenshots were limited and{**82 Misc 3d at 472} incomplete text message conversations. One incomplete screenshot text message conversation was with someone named "Boss of Dario, the black guy" (Boss of Dario). In sum that screenshot concerned a request to meet at an address with a specific time without mention of work. As to the second screenshot, it concerned a person named Juanito with defendant stating "Juanito, good day, three days here this New Jersey and one day in Brooklyn. It's four days of work, Juanito." In response, Juanito states "Perfect. Perfect, Manuel, for reminding me. I'll send you what's missing. Tomorrow can you at 6 at the Yankee." The third offered screenshot allegedly was also between defendant and Juanito. In that text message exchange, defendant states "in that house, again, of the Chinese guy, please Juanito." In reply, Juanito allegedly texts defendant "Of course Manuel. I'm sorry, I was away from the cell phone. Candelario, [on] East End Avenue, Shrewsberry, New Jersey 07702, Chinese guy, [on] Circle Drive, Glen Clove, Long Island." When the screenshots are read individually or in their totality, they do not establish the relation between the parties. Accordingly, defendant's testimony that Boss of Dario and Juanito are clients cannot be reasonably supported by the text message screenshots introduced into evidence.

As to alternative modes to transportation, defendant maintained that it would be difficult for him to use public transportation since he "delivers" heavy materials mostly from Home Depot. However, defendant has alternative means available for the heavy materials to be delivered to a desired location. Additionally, after much prodding, defendant admitted that Home Depot has a delivery service.

Thereafter, defendant introduced an Uber sample trip request generated by his counsel to show financial infeasibility or hardship of traveling to a location in New Jersey alleged to be a worksite. The sample Uber request for 3:59 p.m. showed travel to a New Jersey location to cost over $200 one-way trip. The sample travel receipt was generated by defendant's attorney in the English language. The defendant admitted that he could not read the English language. However, he did finally admit that he recognized the address on the page.

Additionally, defendant contends that he works alone and there are no other persons who may drive him to his sampling of alleged jobsites—three to be exact. Even his uncle, who has a license to drive, could not drive him because the uncle works six to seven days weekly from 4:30 a.m. to 6:30 p.m. Furthermore,{**82 Misc 3d at 473} defendant speculated that his uncle's boss may not allow him to drive defendant to his job locations. However, defendant admitted that he has not asked his uncle or anyone else to drive him anywhere.

A driver's license suspension pursuant to the Vehicle and Traffic Law is a civil remedial suspension procedure and that "suspension or revocation of the privilege of operating a motor vehicle is essentially civil in nature, having as its aims chastening of the errant motorist, and, more importantly, the protection of the public from such a[n] . . . individual." (Matter of Barnes v Tofany, 27 NY2d 74, 78 [1970]; People v Haishun, 238 AD2d 521 [2d Dept 1997], lv denied 90 NY2d 940 [1997].) Moreover,

"[p]rompt suspension of the driver's license of a person alleged to have operated a vehicle with an excessive BAC is one of the most effective weapons in the war against drunk drivers. A judicially-ordered suspension, in the context of the already-existing criminal proceeding, is the most efficient and effective means of balancing the public's interest in highway safety with the rights of the criminal defendant. Prompt suspension not only serves as a general deterrent by mandating swift and certain penalties, but also keeps the potentially dangerous driver off the road during adjudication of the criminal charge." (People v Conrad, 169 Misc 2d 1066, 1069 [App Term, 2d Dept 1996], citing 1994 McKinney's Sess Laws of NY at 2972-2973.)

Once a defendant's driver's license is suspended, defendant may request a hearing to reinstate some driving privileges during the case pendency. Defendant may request an extreme hardship license or request a pre-conviction conditional license. A pre-conviction conditional license is an application made to the Department of Motor Vehicles.

However, the granting of an extreme hardship license is a function of the court. Extreme hardship means the

"inability to obtain alternative means of travel to or from the licensee's employment, or to or from necessary medical treatment for the licensee or a member of the licensee's household, or . . . such licensee's school, college or university if such travel is necessary for the completion of the educational{**82 Misc 3d at 474} degree or certificate." (Vehicle and Traffic Law § 1193 [2] [e] [7] [e].)

Significantly, the burden is on the defendant to establish an extreme [*4]hardship in order to receive limited driving privileges in New York. (Vehicle and Traffic Law § 1193 [2] [e] [7] [e]; People v Correa, 168 Misc 2d 309 [Crim Ct, Richmond County 1996].) Under New York's Vehicle and Traffic Law § 1193 (2) (e) (7) (e) a determination of extreme hardship is left to the discretion of the court.

To determine whether defendant has met its burden of demonstrating extreme hardship the court must consider:

"(1) the presence or absence of licensed persons present in the licensee's household; (2) the ability of other licensed household members to provide transportation for the licensee; (3) the occupation and health condition of the licensee; (4) the proximity of the licensee's place of employment, health care provider or school to his or her household; (5) the presence or absence of any public transportation or taxi service to or from the licensee's household to the place of employment, health care provider or school; (6) a consideration of the licensee's ability to afford public transportation or taxi service as an alternative means of transportation; (7) the presence or absence of co-workers, friends or family members who may assist in the licensee's transportation; and, (8) any other factor that the court deems appropriate to the determination." (People v Bridgman, 163 Misc 2d 818, 821 [Canandaigua City Ct 1995].)

In Bridgman, the court granted defendant construction worker a hardship license. In making its determination, the court found persuasive that defendant lived alone with no friends, no coworkers, and no family that could provide him with transportation. Also, public transportation or taxi service was either unavailable or beyond his economic means.

Specifically, the court may only grant a hardship license to defendant under three circumstances and limited driving to and from: (1) licensee's employment; (2) necessary medical treatment for the licensee or a member of licensee's household; and (3) licensee's school, college, or university. (People v Cruz, 80 Misc 3d 671, 673 [Crim Ct, Bronx County 2023] [defendant was not eligible for hardship privilege to drive his children to and from school and day care].) Moreover, the statute must be{**82 Misc 3d at 475} narrowly construed and cannot extend beyond the three limited circumstances. (Id.) Additionally, the Vehicle and Traffic Law expressly states that "[a] hardship privilege shall not be valid for the operation of a commercial motor vehicle." (Vehicle and Traffic Law § 1193 [2] [e] [7] [e].)

Furthermore, the court cannot grant a hardship license solely on the basis that a license is a requirement of the job. (People v Correa, 168 Misc 2d 309 [Crim Ct, Richmond County 1996].) Additionally, a finding of extreme hardship cannot be based solely upon the licensee's testimony. (Vehicle and Traffic Law § 1193 [2] [e] [7] [e]; People v Criollo, 75 Misc 3d 1208[A], 2022 NY Slip Op 50419[U] [Crim Ct, Bronx County 2022].) Moreover, " '[e]xtreme hardship' does not encompass within its definition inconvenience to the defendant or any consideration of whether the defendant is required, as a condition of employment, to operate vehicles as a properly licensed driver." (People v Correa, 168 Misc 2d 309, 311 [Crim Ct, Richmond County 1996].)

Here defendant's contention that he is unable to obtain alternative means of transportation rings hollow. Defendant has the burden to prove there are no alternative means of transportation or that household members, friends, employers, or coworkers cannot provide transportation to him so that defendant can reach the location of his employment. (People v Correa, 168 Misc 2d [*5]309 [Crim Ct, Richmond County 1996].) Moreover, "longer or more expensive modes of travel, unless prohibitive" do not constitute an inability to obtain alternative means. (People v Cruz, 80 Misc 3d 671, 674 [Crim Ct, Bronx County 2023].)

Throughout the hearing, defendant Luja maintained that he could not use public transportation to and from work because his tools and the materials he uses for work were too heavy to carry. Consequently, public transportation and taxi service were unavailable or beyond his means to afford. To corroborate his testimony defendant offered a photograph showing a warehouse full of lamps that he allegedly transported to the warehouse and another photograph showing a BX roll of electrical cable. Since defendant testified that he performs delivery of heavy materials from Home Depot and other locations for people, he has not proved that he is unable to procure an alternative means of transportation to and from work. (People v Correa, 168 Misc 2d 309 [Crim Ct, Richmond County 1996].) Given defendant's admission that Home Depot can deliver material{**82 Misc 3d at 476} purchased from the store, this service constitutes an alternative means of transportation for the alleged heavy materials.

In addition, when considering an application for a hardship license, the court may consider "any other factor that the court deems appropriate to the determination." (People v Bridgman, 163 Misc 2d 818, 820 [Canandaigua City Ct 1995].) Here the court took into consideration the testimony of defendant. During the hearing, defendant provided testimony that was inconsistent with his record of arrest and prosecution, he utilized business cards with a fake LLC to "embellish" so to acquire, inter alia, electrical work, he used a phony name on the cards, and he proffered incomplete text messages. These issues surrounding the proffered evidence and testimony weigh against defendant's credibility and, thus, testimony.

Defendant also testified that he performs electrical, sheetrock, or painting and delivery of materials from Home Depot to his client's home. Defendant failed to produce evidence to corroborate this testimony. In support of his testimony, defendant could have introduced into evidence an electrician license, checks showing payment of materials or payments to him, paystubs, letters of support, affidavits from clients or an employer, testimony from clients or employers, invoices to clients, bills, receipts for purchases on behalf of clients, and payment receipts to prove employment or that he is an independent construction contractor, and/or receipts for purchases on behalf of clients. Defendant could have also produced toll receipts for upstate or out of state jobs where he allegedly travels to and from for work. In addition, defendant could not testify that his New Jersey work was a fixed job where he would need to travel to and from on a daily basis based on his Home Depot deliveries and other testimony. This list by all means is not exhaustive.

Consequently, crucial evidence proffered by defendant was based solely on his testimony. The court cannot base its decision to issue a hardship privilege solely on defendant's testimony. (See Vehicle and Traffic Law § 1193 [2] [e] [7] [e]; People v Criollo, 75 Misc 3d 1208[A], 2022 NY Slip Op 50419[U] [Crim Ct, Bronx County 2022].) Additionally, the need to drive as a job requirement is not one of the factors to be considered. (People v Mallet, 34 Misc 3d 1216[A], 2011 NY Slip Op 52482[U] [Crim Ct, Kings County 2011]; People v Correa, 168 Misc 2d 309 [Crim Ct, Richmond County 1996].) Significantly, defendant{**82 Misc 3d at 477} testified that he has public transportation available to him and near where he lives. Also, outside of the deliveries he described he performs, he did not explain what tools he uses for his construction and electrical work.

The court holds that extreme hardship does not encompass a situation where, as here, defendant created a self-imposed condition of employment so to travel between various ad hoc workplaces. (See People v Correa, 168 Misc 2d 309 [Crim Ct, Richmond County 1996].) The court therefore denies defendant's request for a hardship license that would permit defendant to travel to and from ad hoc workplaces based on the facts of this case.

The court also finds that defendant has failed to show extreme hardship given the testimony and evidence presented during the hearing. Accordingly, the court cannot use its discretion to grant defendant a hardship privilege. Defendant's request is denied in its entirety.