People v. Emmanuel

• Decision Date: 28 May 1975
• Citation: 368 N.Y.S.2d 773,82 Misc.2d 298
• Parties: The PEOPLE of the State of New York v. Thomas EMMANUEL, Defendant.
• Court: New York City Court

Page 773

368 N.Y.S.2d 773

82 Misc.2d 298

The PEOPLE of the State of New York v. Thomas EMMANUEL, Defendant.

Criminal Court of the City of New York, Queens County, Part 1F.

May 28, 1975.

Nicholas Ferraro, Dist. Atty., Kings County by David Werfel, Asst. Dist. Atty., for the People.

William Gallagher, Legal Aid Society by Michael H. Soroka, Kew Gardens, for defendant.

MAX H. GALFUNT, Judge:

The defendant is charged with violating section 511 of the Vehicle and Traffic Law in that the defendant did operate a motor vehicle on the public roads of this state while his operator's license was suspended. The point of controversy is that the defendant's license apparently was suspended without notice to the defendant (as permitted by the wording contained in the statute immediately following § 510, subd. 3(i) of the Vehicle and Traffic Law). The defendant now seeks a 'true order of acquittal.'

This is apparently a case of first impression as to how section 510 affects section 511 (both are sections of the Vehicle and Traffic Law). There has been prior case law interpreting section 510 in light of the powers of the Commissioner of Motor Vehicles, but no cases deal directly with the issue as to the propriety of suspension without notice of a license.

The relevant facts are as follows: The defendant, while operating a motor vehicle in the County of Queens, was involved in an automobile accident. The defendant thereupon notified the police. Members of the New York City police arrived. Through a standard procedural check, it was determined that the defendant's license had been suspended for a number of prior outstanding traffic infractions committed prior to August 28, the date of the summons. The defendant admitted that on August 28, 1974, there were at least five tickets which he had not answered or for which he had not paid any fine.

During the ensuing trial, the prosecution called as a witness a senior clerk with the Department of Motor Vehicles, who presented an 'ABSTRACT' containing the alleged infractions. The same senior clerk testified that in the regular course of business a notice of suspension would have been sent to the defendant. However, neither this witness nor anyone else testified that a notice of suspension had actually been sent to this defendant.

The defendant testified that he never received notice of the suspension. He cites section 510, subdivision 4a of the Vehicle and Traffic Law which states such suspension shall take effect no less than thirty days from the day on which notice is sent by the commissioner to the person whose license is to be suspended. The defendant testified that he never received notice of the suspension by mail ^* or by any other means. (The defendant, separated from his wife at the time, stayed at his mother's residence. His mail was brought to his mother's house by his wife. His wife testified that no notice was ever received by mail.) The defendant thus contends that the People failed to prove that notice was given to the defendant and without such proof of notice a valid permissive suspension of the defendant's license is not possible. (The court is cognizant of that part of the traffic summons which provides for suspension of a license if no appearance is made by the licensee charged with the particular offense. This is not sufficient notice under § 510, subd. 4a, which provides for suspension for nonappearance.)

The defendant, in his memorandum of law, has cited § 510, subdivision 4a as a defense, in that proper notice was not given. It is the opinion of this court that the prosecution has failed to prove that section as to notice. Furthermore, this court, in its own research, has read the paragraph following § 510, subdivision 3(i) of the Vehicle and Traffic Law. Although not raised by either the People or the defendant, the issue presents itself whether this section precludes prosecution of the defendant and whether this section is constitutional.

The issue revolves around the wording in the Vehicle and Traffic Law immediately following section 510, subdivision 3(i). It states:

'A license or certificate of registration . . . may, however, be temporarily suspended Without notice, pending any prosecution, investigation or hearing.' (emphasis added)

While the issue could be resolved on the fact as to whether the defendant did, in fact, receive notice, it must be discussed whether the provision of section 510 above can stand up under scrutiny as to due process. As stated in People v. Farmer, decided April 7, 1975 in the dissenting opinion of Cooke, J.:

'It is a rudimentary element of due process of law, forcefully embodied in our State Constitution, that '. . . in any trial in any court whatever the party accused shall . . . be informed of the nature and cause of the accusation . . .' (N.Y.Const., art. I, sec. 6). Notwithstanding the somewhat peculiar status traffic violations have within our criminal justice system (see Matter of Rosenthal v. Harnett, 36 N.Y.2d 269, (367 N.Y.S.2d 247, 326 N.E.2d 811,) decided March, 1975), a law or procedure, based upon whatever reason, be it convenience or expedience, that conflicts with this constitutional mandate, must fall.'

The provision in question was obviously intended to remove those drivers deemed dangerous from the highways. But as Justice Fuchsberg stated in People v. Farmer, supra:

'While such legislative intent is laudable, it may not impair the due process requirement for providing a defendant with notice of an offense charged.'

There evolves a conflict of policy. The Legislature can exercise its power to regulate the use of highways and may impose reasonable conditions before a license is issued and for the continued possession of same. Any appropriate means to insure competence and care on the part of its licensees is consonant with due process (Reitz v. Mealy, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21; People v. Rosenheimer, 209 N.Y. 115, 102 N.E. 530).

Yet, possession of a driver's license is a vested property right, which may not be taken away except by due process of law (Constitution, art. 1, § 6; Seufert v. Tofany, 43 A.D.2d 890, 352 N.Y.S.2d 70; Kamil v. Tofany, 32 A.D.2d 1035, 303 N.Y.S.2d 716 (1969); Matter of Moore v. MacDuff, 309 N.Y. 35, 127 N.E.2d 741 (1955); Jacobs v. Tofany, 56 Misc.2d 661, 289 N.Y.S.2d 824 (1968); Valenti v. Tofany, 55 Misc.2d 537, 286 N.Y.S.2d 123 (1968); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90; Almeida v. Lucey, D.C.Mass., 372 F.Supp. 109 (1973)). Nor is a license to drive a gift or favor of a sovereign. It is a thing of real value which may not be taken away arbitrarily (Application of Wignall, 278 App.Div. 28, 103 N.Y.S.2d 7, aff'd Wignall v. Fletcher, 303 N.Y. 435, 103 N.E.2d 728 (1951)).

The ramifications of section 510, subdivision 3 have been discussed in previous decisions.

In Robertson v. Tomson, 60 Misc.2d 275, 303 N.Y.S.2d 115, the petitioner brought an article 78 proceeding in order to review the peremptory suspension of his license.

The defendant had been arraigned for driving while his ability to operate a vehicle was impaired (VTL § 1192). His license was suspended for 60 days. Three weeks after this suspension, the defendant was again arraigned for driving while in an intoxicated condition. The defendant's license was suspended during this arraignment.

The court held that the suspension was appropriate action due to the charge against the defendant and his previous offense for driving while intoxicated.

In Jackson v. Commissioner of Motor Vehicles, 68 Misc.2d 946, 328 N.Y.S.2d 547 (1972), a defendant motorist was allegedly involved in an auto accident causing the death of one pedestrian. At a hearing, the defendant refused to testify. For this reason, his license was suspended.

The court, in overturning the suspension, declared that

'A driver's license may be suspended only for good cause based on competent legal testimony.'

Two differentiations can be made between these prior decisions and the set of facts before this bench. In the prior cases, the defendant had been arraigned or had experienced a hearing. Also, the challenge in the prior cases was directed to the Commissioner of Motor Vehicles in the form of an article 78 proceeding.

In Herkel v. Kelly, 14 Misc.2d 966, 180 N.Y.S.2d 353 (1958), the petitioner was arrested and charged with speeding (doing 95 mph over one quarter mile). He pleaded guilty. The Commissioner of Motor Vehicles received a notice of the conviction and scheduled a hearing for the petitioner in December (1958). The petitioner was notified of said hearing along with a notice stating that his license was suspended pending the hearing.

The petitioner alleged that the Commissioner lacked sufficient evidence to cause a permissive temporary suspension and that § 71 (now that paragraph following § 510, subd. 3(i)) of the Vehicle & Traffic law permitting 'a license or certificate of regislation . . . (to) be temporarily suspended without notice, pending any prosecution, investigation or hearing' is unconstitutional.

The court (Supreme Court, Oneida County), in upholding the suspension,...