People v. Fontanez

• Decision Date: 11 August 2015
• Docket Number: No. 15–68351.,15–68351.
• Citation: 22 N.Y.S.3d 138 (Table)
• Parties: The PEOPLE of the State of New York, v. Richard FONTANEZ, Defendant.
• Court: New York City Court

22 N.Y.S.3d 138 (Table)

The PEOPLE of the State of New York,

v.Richard FONTANEZ, Defendant.

No. 15–68351.

City Court, City of Poughkeepsie.

Aug. 11, 2015.

August J. Dumser, Esq., Sr. Assistant Public Defender, Dutchess County Public Defender, Attorney for the Defendant, Poughkeepsie, NY, Andrea Long, Esq., Senior Assistant District Attorney, Dutchess County District Attorney, Poughkeepsie, NY.

FRANK M. MORA, J.

Defendant has moved by way of a Notice of Motion, dated June 2, 2015, seeking various forms of relief. Defendant's motion is supported by the affirmation of August J. Dumser, Esq., Senior Assistant Public Defender, dated June 2, 2015. The People have responded by "Affirmation in Answer to Defendant's Notice of Motion" which is supported by the affirmation of Andrea Long, Esq., Senior Assistant District Attorney, dated June 23, 2015. Defendant is charged with aggravated unlicensed operation of a motor vehicle in the second degree, in violation of Vehicle and Traffic Law § 511(2)(a)(4), an unclassified misdemeanor, operating a motor vehicle on a public highway with improper plates in violation of Vehicle and Traffic Law § 402(4), operating an unregistered motor vehicle on a public highway in violation of Vehicle & Traffic Law § 401(1)(a), and operating a motor vehicle on a public highway without insurance in violation of Vehicle and Traffic Law § 319(1) -all traffic infractions. Now having duly deliberated on said motion and the People's answer to same, the Court hereby finds and determines the motion as follows:

1. That branch of the defendant's motion that seeks dismissal of the misdemeanor complaint¹ charging the defendant with aggravated unlicensed operation of a motor vehicle in the second degree in violation of Vehicle and Traffic Law § 511(2)(a)(4), on the grounds that the complaint is facially insufficient, is granted.

An accusatory instrument will be dismissed as facially insufficient if it fails to allege non-hearsay facts of an evidentiary nature that support or tend to support each and every element of the offense charged and the defendant's commission thereof. C.P.L. § 100.15(3) ; § 100.40(1)(c); People v. Alejandro, 70 N.Y.2d 133 (1987).An information is sufficient on its face only if it contains non-hearsay factual allegations which, if true, establish every element of the offense and provide reasonable cause to believe the defendant committed the offense charged. C.P.L. § 100.15(3) ; 100.40(1)(b),(c); People v. Casey, 95 N.Y.2d 354 (2000).Of course, to be facially sufficient, an accusatory instrument need only establish a prima facie case and it need not establish guilt beyond a reasonable doubt. People v. Henderson, 92 N.Y.2d 677 (1999) ; People v. Moncayo, N.Y.L.J., April 10, 1997, at 29, Col 4 [App Term, 2d & 11th Jud. Distr.]. The prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, supra at 680.Here, the complaint alleges that the defendant operated a motor vehicle while his license was suspended and then lists each of the suspensions alleging the same to be true "upon direct knowledge and information and belief being a NYSPIN readout of the defendant's NYS driver license." However, the list of suspensions provided by the officer is based upon hearsay. The complaint fails to include a certified copy of the defendant's abstract from the New York State Department of Motor Vehicles, thereby rendering the complaint facially insufficient and subject to dismissal. People v. Hansen Frias–Acevedo, 27 Misc.3d 889 (New York County 2010) ; People v. Clinkscales, 3 Misc.3d 333 (1st Dist.2004) (a police officer's direct attestations of a defendant's driving record based upon an electronic review of DMV records must be supported by a certified record); People v. Rodriguez, 165 Misc.2d 684 (Queens County 1995) (Court found the information, along with the supporting deposition, namely a certified copy of the defendant's "Abstract of Driving Record," to meet the requirements for facial sufficiency); People v. Blake, 154 Misc.2d 660 (Kings County 1992).

This Court now adopts the holding that if the People fail to provide a certified abstract of the defendant's driving record, or other supporting deposition from the New York State Department of Motor Vehicles providing non-hearsay allegations to support the charge² , and the defendant moves to dismiss the misdemeanor complaint charging him with aggravated unlicensed operation of a motor vehicle on the grounds that the accusatory instrument is defective, the motion must be granted. People v. Blake, 154 Misc.2d 660, 663 (Kings County 1992) ; see, People v. Mayes, 19 Misc.3d 48, 49 (App. Term 2d Dept.2008) [where two informations and supporting documents charging defendant with aggravated unlicensed operation of a motor vehicle in the second degree had included certified copies of the DMV driver abstract, the People satisfied the statutory standards for facial sufficiency under C.P.L. § 100.15, § 100.40(1). The Court also found that the People proved the element of "knowledge" in that a certified driving abstract was entered into evidence]; People v. Clinkscales, supra; see, People v. Hansen Frias–Acevedo, supra; People v. Rodriguez, supra. In short, a certified abstract or other non-hearsay affidavit from the Department of Motor Vehicles attesting to the suspension of the defendant's license must accompany the misdemeanor complaint charging Vehicle and Traffic Law § 511 in order to survive a motion to dismiss for facial insufficiency.

The People rely, in part, on People v. Rivera, 32 Misc.3d 1209(A) (2011) in support of their argument that the accusatory instrument is facially sufficient.³ However, Rivera is inapposite. The focus in the Rivera case was upon whether the People had established that the driver, a Pennsylvania resident with a suspended Pennsylvania license, knew or should have known that as a result of his Pennsylvania suspension, he was not licensed to drive in New York, not that the accusatory was based upon hearsay allegations. Here, only in part, does the defendant argue that "[T]he prosecution is relying on hearsay to establish that the defendant knew or should have known that his license was suspended". The defendant's other argument in seeking to dismiss the matter is that it is insufficient because it contains hearsay. Dumser affirmation, dated June 2, 2015, ¶ 15. Failure by the People to file a certified copy of the defendant's Department of Motor Vehicles driver abstract with the misdemeanor complaint providing non-hearsay allegations of the defendant's suspensions to support Police Officer Simons reading of the NYSPIN report is fatal. People v. Pierre, 157 Misc.2d 812 (New York County 1993). It is indisputable that the officer is not the source providing the suspension information, yet the complaint still relies upon this hearsay to fulfill the elements of the crime in charging defendant with aggravated unlicensed operation of a motor vehicle in the second degree. As such, the misdemeanor complaint charging the defendant with aggravated unlicensed operation of a motor vehicle in the second degree, in violation of V.T.L. 511(2)(a), is dismissed. C.P.L. § 100.15 ; § 100.40.

This Court now turns to the relief set forth in the defendant's motion as it pertains to the remaining charges set forth in the simplified traffic informations: aggravated unlicensed operation of a motor vehicle in the second degree in violation of Vehicle and Traffic Law 511(2)(a)⁴ , improper plates in violation of Vehicle and Traffic Law § 402.4, unregistered motor vehicle in violation of Vehicle & Traffic Law § 401.1(a), and operating a vehicle without insurance in violation of Vehicle and Traffic Law § 319.4:

2. That branch of...