People v. Abelo

• Decision Date: 28 December 2010
• Citation: 914 N.Y.S.2d 54,79 A.D.3d 668
• Parties: The PEOPLE of the State of New York, Respondent, v. Eddie ABELO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 54

79 A.D.3d 668

The PEOPLE of the State of New York, Respondent,

v.Eddie ABELO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 28, 2010.

Steven Banks, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Bari L. Kamlet of counsel), for respondent.

FRIEDMAN, J.P., NARDELLI, DeGRASSE, FREEDMAN, MANZANET-DANIELS, JJ.

Judgment, Supreme Court, Bronx County (Ralph A. Fabrizio, J.), rendered January 18, 2007, convicting defendant, after a nonjury trial, of aggravated unlicensed operation of a motor vehicle in the second degree, and sentencing him to a term of 60 days with 3 years' probation and a $1,500 fine, reversed, on the law, and the matter remanded for a new trial.

The conviction should be reversed and the matter remanded for a new trial on the ground that it was error to admit the notice of suspension mailed in 1992. As the trial court found, the People were required to demonstrate that "defendant had or should have had knowledge of the fact that his license wassuspended and revoked" (14 Misc.3d 818, 828, 831 N.Y.S.2d 838 [2006]; see Vehicle and Traffic Laws 511[2][a][iv] ). While the remaining evidence was sufficient to establish that he was driving with a suspended license in 2005, the foregoing error was not harmless and thus a new trial is required.

On October 25, 2005, defendant was stopped by a police officer because his car had a broken front headlight. Upon checking his registration and what appeared to be a valid license in the central dispatch system, the officer learned that defendant's license was suspended based on 1992 and 1993 unpaid fines. He was then charged with aggravated unlicensed operation of a motor vehicle Vehicle and Traffic Law § 511(2)(a)(i)(iv) because he had more than three open suspensions.

The Department of Motor Vehicles (DMV) issued numerous suspensions to defendant in 1992 and 1993 for failure to pay fines for various parking violations and traffic infractions. In 1996, defendant surrendered his New York State license in order to obtain a Pennsylvania license. In 1997, he applied for and was issued a New York license using all of his identifying information. In 1998, he again surrendered his New York State license for a Pennsylvania license but surrendered his Pennsylvania license for a New York license in 2001. He again applied for a New York license in 2004 after surrendering a Pennsylvania license. On the application for the 2001 license, he used his mother's name, Melendez, while he used Abelo, on his 2004 application. None of these applications was rejected based on his having had a previously suspended license, and New York licenses were issued. In 2004 and 2005, defendant incurred traffic violations and suspensions were issued, but they were lifted after defendant paid the fines. Defendant also took two courses in accident prevention that were designed to lower insurance rates and achieve points reduction on his license in September 2005. This circumstantial evidence, although not overwhelming, would have been sufficient to support defendant's conviction.

The evidence which gives rise to the trial error was the testimony of one Kimberly Shaw, a customer representative for the DMV, who was first employed in 2002. She testified to mailing procedures at DMV. Shaw testified that based on an abstract generated on November 23, 2005, defendant's license had been suspended 57 times on 16 dates between 1983 and 1994 for unpaid tickets. Shaw testified that a driver's license suspension is mailed to the address on file at the DMV, that such a mailing had occurred in December 1992, and that defendant's license was suspended on January 4, 1993. The court admitted the 1992 notice of suspension. On cross-examination Shaw acknowledged

[79 A.D.3d 670, 914 N.Y.S.2d 56]

that she did not work for DMV in 1992, and could not testify concerning standard mailing procedures during that year or those in place in 1993. She also acknowledged that procedures had changed. The court then refused to admit the 1993 suspension notices because Shaw was not familiar with the business practices in place at that time or earlier, but it refused to strike the already admitted 1992 notice.

Defense counsel moved to dismiss the charge on the ground that the People failed to prove that defendant knew or had reason to know that his license was suspended or that he knew he had three or more suspensions. In People v. Pacer, 6 N.Y.3d 504, 814 N.Y.S.2d 575, 847 N.E.2d 1149 [2006], the Court of Appeals held that documentary evidence of a license suspension was inadequate and violated the Confrontation Clause as in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] because the affidavit in Pacer was a testimonial statement. The Court stated that, without an opportunity to cross-examine the affiant, defendant was unable to challenge the People's proof on a critical matter.

The People here argue that, having produced Kimberly Shaw, they satisfied their obligation to produce a witness who was subject to cross-examination. While defendant acknowledges that it was clearly not necessary to produce someone who was employed at the time the notice was mailed, he argues that the People were obligated to produce someone who had at least familiarized herself with the procedures current at the time. Moreover, as defendant argues, the trial court's refusal to admit the 1993 notices of suspension because Ms. Shaw was unfamiliar with the mailing practices in 1993 was inconsistent with admission of the 1992 notice of suspension. The witness made it clear that she was not familiar with the practice in either year.

At the outset, we reject defendant's claim that the statute under which he was convicted, Vehicle and Traffic Law § 511(2)(a)(iv), aggravated unlicensed operation of a motor vehicle in the second degree, requires knowledge that one is driving with three license suspensions. Although the aggravating factor is that there were three or more suspensions, the statute only requires knowledge or reason to know of one such suspension, not of three suspensions.

However, the only basis for admitting the required notice of suspension was the testimony of a witness who was not qualified to testify concerning procedures in use at the time that the notice was sent. Admitting such evidence contravenes the rationale of People v. Pacer, 6 N.Y.3d 504, 814 N.Y.S.2d 575, 847 N.E.2d 1149 [2006], supra. A witness who on cross-examination denies knowing what procedures were used at the time of mailing does not satisfy the obligation toproduce a witness who can be adequately cross-examined concerning notice to defendant. In essence, the notice of suspension was admitted without foundation, and under the facts of this case its admission constituted reversible error.

The fact that DMV continued to issue him new and facially valid licenses upon the surrender of his Pennsylvania licenses renders the circumstantial evidence that defendant knew he was driving with a suspended license less than overwhelming. For this reason, the aforementioned error in admitting the notice of suspension cannot be deemed harmless and the matter must be remanded for a new trial.

All concur except NARDELLI and DeGRASSE, JJ. who dissent in a memorandum by DeGRASSE, J. as follows.

DeGRASSE, J., (dissenting).

I respectfully dissent and would affirm the judgment of conviction. The crime of second-degree aggravated unlicensed operation of a motor vehicle has a mens rea element. Conviction requires proof that, among other things, a defendant knew or had reason to know that his or her driving privileges in this State have been suspended, revoked or otherwise withdrawn by the Commissioner of Motor Vehicles (Vehicle and Traffic Law § 511[2] ). Defendant's driving abstract, a business record of the Department of Motor Vehicles (DMV), established that his driver's...