People v. Known

• Decision Date: 09 December 2013
• Citation: 42 Misc.3d 81,981 N.Y.S.2d 241,2013 N.Y. Slip Op. 23418
• Parties: The PEOPLE of the State of New York, Respondent, v. Ismael MALDONADO Also Known as Ismael M Acevedo, Appellant.
• Court: New York Supreme Court — Appellate Term

42 Misc.3d 81
981 N.Y.S.2d 241
2013 N.Y. Slip Op. 23418

The PEOPLE of the State of New York, Respondent,
v.
Ismael MALDONADO Also Known as Ismael M Acevedo, Appellant.

Supreme Court, Appellate Term,
Second Dept., 2, 11 & 13 Judicial Dist.

Dec. 9, 2013.

[981 N.Y.S.2d 242]

Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove, Seth M. Lieberman and Gamaliel Marrero of counsel), for respondent.

Steven Banks, Legal Aid Society, New York City (Steven J. Miraglia of counsel), for appellant.

PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William McGuire, J., at trial; Gilbert C. Hong, J., at sentence), rendered June 8, 2010. The judgment, insofar as

[981 N.Y.S.2d 243]

appealed from as limited by the brief, convicted defendant, upon a jury verdict, of two counts of aggravated unlicensed operation of a motor vehicle in the second degree and two counts of aggravated unlicensed operation of a motor vehicle in the third degree.

ORDERED that the judgment of conviction, insofar as appealed from, is modified, on the law, by vacating the convictions of two counts of aggravated unlicensed operation of a motor vehicle in the second degree (counts 5 and 6) and one count of unlicensed operation of a motor vehicle in the third degree (count 4) (under the name of “Ismael M Acevedo”), vacating the sentences imposed thereon and dismissing those counts of the accusatory instrument, and the fines therefor, if paid, are remitted; as so modified, the judgment of conviction, insofar as appealed from, is affirmed.

In July 2008, defendant was arrested and charged, under the name of Ismael Maldonado, with Vehicle and Traffic Law offenses. This accusatory instrument was subsequently superseded in its entirety, in June 2009, by a superseding information which charged defendant, under the name of “Ismael Maldonado AKA Ismael M Acevedo” ( seeCPL 100.50[1] ). The June 2009 information contained charges relating specifically to “Ismael M Acevedo” which were not in the July 2008 accusatory instrument. Prior to defendant's 2010 jury trial, a prosecutor's information was filed against defendant, under the name “Ismael Maldonado AKA Ismael M Acevedo.” Insofar as is relevant to this appeal, defendant was found guilty of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511[1] ) (under the name of “Ismael Maldonado”) (count three); aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511[1] ) (under the name of “Ismael M Acevedo”) (count four); aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511[2][a][ii] ) (under the name of “Ismael M Acevedo”) (count five); and aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511[2][a][iv] ) (under the name of “Ismael M Acevedo”) (count six).

On appeal, defendant contends that so much of the accusatory instrument as charged him with aggravated unlicensed operation of a motor vehicle in the second and third degrees is jurisdictionally defective because it does not allege that he had received notice of the suspensions/revocations from the Department of Motor Vehicles (DMV); and that his Sixth Amendment right to confront the witnesses against him was violated when the Criminal Court admitted the affidavits of regularity/proofs of mailings. Defendant also contends that his confrontation rights were violated because a redacted printout from the Department of Criminal Justice Services (DCJS), which stated, among other things, that he used the name Acevedo as an alias, was improperly admitted into evidence inasmuch as no foundation had been laid for its admission. We note that, on appeal, the People argue that if the DCJS printout was improperly admitted into evidence, all counts pertaining to “Ismael Maldonado”...