In this matter, defendant moves by notice of motion to dismiss the accusatory instrument due to the People's failure to file a valid Certificate of Compliance ("COC") and properly convert the accusatory instrument within the speedy trial timeframe (CPL 30.30 [1] [b]).

On April 16, 2023, the defendant was arraigned in Criminal Court for Vehicle and Traffic Law §§ 1192 (1) Driving While Ability Impaired; 1192 (2) Driving While Intoxicated per se; 1192 (3) Driving While Intoxicated; 509 (1) Unlicensed Operator; and 511 (1) (a) Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree. The court released the defendant on his own recognizance and adjourned the matter to June 6, 2023. On June 6, 2023, the People were not ready, and the court adjourned the matter to August 9, 2023. The People filed the Certificate of Compliance, Statement of Readiness ("SOR"), and superseding information off-calendar on June 16, 2023. On August 9, 2023, the court adjourned the matter to October 25, 2023, for hearings.

Defendant filed the instant motion to dismiss ("Defense Motion") off-calendar on August 18, 2023. The People remitted opposition ("People's Response") on September 5, 2023. On September 13, 2023, defendant filed a reply ("Defense Reply").

After careful review of the defendant's motion, the People's response, the defendant's reply, and all relevant legal authority, the motion to dismiss is granted due to the People's failure to validly convert the accusatory within the speedy trial timeframe.^[FN1]

Vehicle and Traffic Law § ("VTL") 511 (1) (a) Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree states that a person is guilty of the offense "when such person 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of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, [*2]revoked or otherwise withdrawn by the commissioner."

The accusatory instrument reads, in pertinent part:

The deponent is further informed by the above mentioned signed and sworn statement that the informant conducted a check of the official, computerized Department of Motor Vehicles driving record (s) (pursuant to VTL 201) relating to defendant.

The deponent is further informed by the above mentioned signed and sworn statement that the informant observed said record (s) to indicate that, at the above time, the defendant was driving with his privilege to do so having been suspended in the state of New York.

The deponent is further informed by the above mentioned signed and sworn statement that the informant further observed the official Department of Motor Vehicles record (s) to indicate that, at the above time, the defendant had 1 suspension on 0 dates.

The deponent is further informed by the above mentioned signed and sworn statement that the informant states that the informant's basis for believing that the defendant had reason to know that his license was suspended is as follows: the above-described a New York State Department of Motor Vehicles computer check revealed that defendant's license was suspended for failure to answer or appear in response to a traffic summons, and all such summons have printed on them the warning "if you do not answer this ticket by mail within 15 days your license will be suspended."

The deponent is further informed by the above mentioned signed and sworn statement that the informant further states that the New York State Department of Motor Vehicles mails a notice of suspension to any such person at their last known address.

Defendant argues that the People failed to properly convert the accusatory instrument from a misdemeanor complaint into an information. Defendant states that the People insufficiently plead VTL 511 (1) (a) Operating a Motor Vehicle in the Third Degree (Defense Motion, p. 6). Specifically, defendant argues that a segment of the accusatory instrument contains hearsay, and the People's attempt to cure the hearsay with the New York State Department of Motor Vehicle ("DMV") abstract fails muster (Defense Motion, p. 8). Defendant states that his DMV abstract indicates that his license was suspended for his failure to pay a driver responsibility assessment, not for his failure to answer or appear in response to a traffic summons, as indicated on the accusatory instrument (Defense Motion, p. 8). Therefore, defendant proceeds, the accusatory instrument lacks factual support that defendant knew his license was suspended or was notified of said suspension (Defense Motion, p. 8). The defendant contends that in order to properly plead this charge, the People must present proof of mailing of the notice of suspension to the defendant (Defense Motion, p. 9).

The People concede that they mistakenly drafted the accusatory instrument to state an incorrect basis for defendant's license suspension (People's Response, p. 7). The People argue that the DMV abstract cured the defect on the accusatory instrument since the DMV abstract shows the actual reason for defendant's suspension (People's Response, p. 7). The People further maintain that the accusatory instrument contains non-hearsay allegations. The People argue that they are not required to provide proof of mailing from the DMV because the accusatory instrument states that the informant knows that the DMV mails a notice of suspension to the last known address of a person with such suspension. Thus, the People argue that they have satisfied the knowledge element (People's Response, p. 7).

An accusatory instrument is facially sufficient when the misdemeanor complaint contains non-hearsay allegations of an evidentiary nature that, together with accompanying supporting [*3]depositions, provide reasonable cause to believe that the defendant committed the offenses charged (People v Henderson, 92 NY2d 677, 669 [1999]; People v Alejandro, 70 NY2d 133, 137 [1987]; People v Dumas, 68 NY2d 729, 731 [1986]). CPL 100.15 (3) provides that the factual allegations must establish every element of the offenses charged. CPL 100.40 (1) (c) states that "[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." In reviewing a complaint for facial sufficiency, the factual part must be read in a "fair and not overly restrictive or technical reading" and "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" (People v Casey, 95 NY2d 354, 360 [2000]).

There is no dispute that a warning is printed on the back of all summonses that an individual's license will be suspended for "failure to answer or appear in response to a traffic summons" (People v Scott, 47 Misc 3d 138[A], 2015 NY Slip Op 50588[U], *2 [App Term, 2d Dept, 11th & 13th Jud Dists 2015]. Said warning typically states, "[i]f you don't answer this ticket by mail within 15 days your license will be suspended" (id.). The Appellate Term has held that an officer's reference to such statement in the accusatory instrument, and reliance upon the DMV's mailing of a notice of suspension to any person at their last known address, is sufficient for pleading purposes (id; People v Benitez, 44 Misc 3d 129[A], 2014 NY Slip Op 50987[U], *1 [App Term, 2d Dept, 11th & 13th Jud Dists 2014]; People v Austin, 34 Misc 3d 136[A], NY Slip Op 52404[U], *2 [App Term, 2d Dept, 11th & 13th Jud Dists 2011]).

However, where the suspension is of a different nature (i.e., insurance lapse, failure to pay child support, failure to pay a driver's responsibility assessment, etc.), as is the case here, the standard notice that appears on the back of summonses for traffic infractions does not apply. "Proof of knowledge that one's license has been suspended can be established in a variety of ways, depending on the reason for the underlying suspension" (People v Brown, 15 Misc 3d 1143 [A], 2007 NY Slip Op 51129[U], *1 [Crim Ct, NY County 2007] ["Thus, for example, if the license has been suspended as a result of a defendant's conviction of an offense involving controlled substances [. . .] knowledge might be shown by introduction of the transcript of a sentencing proceeding containing the court's on-the-record advisal that such suspension was being imposed"]). Additionally, an approved procedure to sufficiently demonstrate the scienter element for license suspensions that do not result from a traffic infraction is for the People to provide, along with a DMV abstract, a copy of the notice that was allegedly sent to the defendant. Such notice must also be accompanied by an affidavit from an employee at the DMV regarding the DMV's procedures for issuing and mailing such notices (VTL 214).

In People v Branch, 44 Misc 3d 1224 (A), 2014 NY Slip Op 51297(U), *1, *6 (Crim Ct, Kings County 2014), where the defendant's license was suspended for failure to pay child support, the court opined that the defendant's knowledge was not established in the accusatory instrument by an officer's reference to language that typically appears on the back of summonses for traffic infractions (id.). The court also explained that the defendant's DMV abstract alone did not support the scienter prong under VTL 511(1) (a) (id.). The Branch court further noted multiple cases in which courts have held that scienter must be alleged and supported in the information, including People v Carlsons, 171 Misc 2d 943, 946 (Sup Ct, Nassau County 1997)(the court dismissed the VTL 511(1) (a) charge when People only submitted a DMV abstract); People v J.T., 13 Misc 3d 1212 (A), 2006 NY Slip Op 51799 (U), *3 (Crim Ct, New York County 2006) (where defendant's license was suspended due to an insurance lapse, the court found nothing in the accusatory instrument or abstract corroborated the officer's statement [*4]that the DMV sent defendant a warning letter prior to suspending his license); and People v Acevedo, 27 Misc 3d 889, 894 (Crim Ct, New York County 2010) (where defendant's license was suspended for failure to pay a driver's responsibility assessment, the court opined that the People's failure to provide notice from the DMV, or an affidavit from a DMV employee rendered VTL 511[1] [a] insufficiently plead).

In this matter, the accusatory instrument contains hearsay allegations as to (1) defendant's license being suspended, and (2) whether defendant knew or had reason to know that his license was suspended. The accusatory instrument also states the wrong reason for defendant's license being suspended. The DMV abstract rectifies this error and cures the hearsay defect with respect to the suspension element. However, the DMV abstract alone is insufficient to cure the hearsay defect with respect to the scienter, or knowledge element. Although the face of the accusatory instrument states that the officer knew that the DMV mails suspension letters for an individual's failure to answer or appear in response to a traffic summons, the officer does not attest to whether the DMV mails suspension letters for an individual's failure to pay a driver responsibility assessment. Additionally, nowhere on the face of the DMV abstract does it state that the defendant was provided with notice of his suspension or that the defendant had knowledge of such suspension. Moreover, the People provided neither proof of notice of suspension nor a corroborating affidavit from an individual with personal knowledge concerning the DMV's protocol and mailing procedures for sending notices of suspensions for failure to pay driver responsibility assessments (VTL 214; see also People v Meyer, 177 Misc 2d 537, 538 [App Term, 2d Dept, 1998]). Further, the People did not provide any other corroborating material (i.e., a court transcript where defendant was informed of his suspension, defendant's own admission that he knew of his suspension, etc.) that would show defendant had the requisite knowledge of his suspension. Thus, the court finds that the complaint is not fully converted to an information.

CPL 30.30 (5-a) provides that a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of section 100.15 and 100.40 and those counts not meeting such requirements have been dismissed." Moreover, when the People state that they are ready in the SOR, they must be "actually ready" (People v Santini, 59 Misc 3d 223 [Crim Ct, NY County 2018] citing People v England, 84 NY2d 1, 4 [1994] [holding a statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock]); (People v Brown, 28 NY3d 392, 404 [2016]). Partial conversion of an accusatory instrument is not permitted.^[FN2] When an accusatory instrument contains even one facially insufficient count, the [*5]instrument is not fully converted. Here, when the People certified pursuant to Criminal Procedure Law § 30.30 (5-a), and announced ready, their accusatory instrument did not comply with the requirements of CPL 100.15 and 100.40. Therefore, the People's SOR is illusory.

When the top count of an accusatory instrument is an A misdemeanor, as is the case here, the People must be ready for trial within 90 days of the commencement of the criminal action CPL 30.30 (1) (b); 170.30 (e). To be ready for trial and stop the speedy trial clock, the People must file (1) a COC in good faith; (2) a valid SOR; and (3) certify that all the counts in the accusatory instrument are facially sufficient pursuant to CPL 30.30 (5-a) (People v Ramirez-Correa, 71 Misc 3d 572 [Crim Ct, Queens County 2021]).

The period between the filing of the accusatory instrument (April 16, 2023) and when defendant filed the instant motion (August 18, 2023) is 124 days. Thus, the instant matter exceeds the 90-day speedy trial time limitation.

Accordingly, it is hereby

ORDERED, that the defendant's motion to dismiss the accusatory instrument for failure to convert the accusatory instrument within the speedy trial timeframe is granted, and it is further

ORDERED, that the Order of Suspension dated April 16, 2023, is vacated, and it if further

ORDERED, that the instant matter is dismissed and sealed.

This constitutes the decision and order of the court.