People v. Smith

• Decision Date: 01 October 1999
• Citation: 258 A.D.2d 245,697 N.Y.S.2d 783
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant,<BR>v.<BR>VICTOR D. SMITH, Respondent.
• Court: New York Supreme Court — Appellate Division

258 A.D.2d 245

697 N.Y.S.2d 783

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,

v.VICTOR D. SMITH, Respondent.

GREEN, J.

October 1, 1999.

Howard R. Relin, District Attorney of Monroe County, Rochester (Patrick H. Fierro and Elizabeth Clifford of counsel), for plaintiff-appellant.

Drew R. DuBrin, Monroe County Public Defender's Office, Rochester, for defendant-respondent.

DENMAN, P.J., HAYES, PIGOTT, JR. and SCUDDER, JJ., concur.

OPINION OF THE COURT

GREEN, J.

This appeal by the People raises two issues: whether an abstract of driving record of the Department of Motor Vehicles (DMV abstract) is admissible evidence of a prior conviction of operating a motor vehicle while under the influence of alcohol or drugs (DWI) and, if so, whether the DMV abstract in this case was properly authenticated. For the reasons that follow, we conclude that a DMV abstract can be admissible under the public document exception to the hearsay rule but that the abstract in this case was not properly authenticated.

The first count of an indictment filed July 16, 1998 charges defendant with DWI in violation of Vehicle and Traffic Law § 1192 (3). The special information filed in connection with the indictment (see, CPL 200.60) accuses defendant of having been previously convicted of DWI in Macedon Town Court, Wayne County, on February 4, 1997 and in St. Lawrence County on February 23, 1998. By virtue of the accusation that defendant had been convicted of DWI twice within the preceding 10 years, the first count of the indictment charged defendant with DWI as a class D felony (see, Vehicle and Traffic Law § 1193 [1] [c] [ii]).

Defendant moved for dismissal or reduction of the first count of the indictment (see, CPL 210.20). In response to the motion, the People produced the Grand Jury minutes and the exhibits used to establish defendant's two prior convictions before the Grand Jury. Grand Jury exhibit No. 1, a certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, certifies that defendant was convicted of DWI in that court on February 4, 1997. Grand Jury exhibit No. 2, a DMV abstract, indicates that defendant was convicted of DWI in St. Lawrence County on February 23, 1998. More precisely, the DMV abstract identifies the conviction as "DRVG INTOX PI ACC". There is no mention of the section defendant was convicted of violating or the court where the conviction was entered. The seal of the State of New York is printed on each page of the abstract, and each page also contains the following statement: "This is to certify that this document is a true and complete copy of an electronic record on file in the New York State Department of Motor Vehicles, Albany, New York." A facsimile of the signature of Richard E. Jackson, Jr., Commissioner of the Department of Motor Vehicles, follows that statement.

Supreme Court granted defendant's motion in part by reducing the DWI charge under the first count of the indictment from a class D felony (see, Vehicle and Traffic Law § 1193 [1] [c] [ii]) to a class E felony (see, Vehicle and Traffic Law § 1193 [1] [c] [i]). The court concluded that the certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, was legally sufficient to establish that defendant had been convicted of DWI once within the preceding 10 years. The court further concluded, however, that the evidence before the Grand Jury was not legally sufficient to establish that defendant was convicted of DWI twice within the preceding 10 years because the DMV abstract did not constitute competent and admissible evidence of the alleged St. Lawrence County conviction. More specifically, the court concluded that the certification on the abstract did not qualify as certification of a business record (see, CPLR 4518 [c]) or a public record (see, CPLR 4520, 4540). The People appeal from the order insofar as it reduces the severity of the charge under the first count of the indictment.

CPL 190.30 (1) provides: "Except as otherwise provided in this section, the provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings." In addition, CPL 190.65 (1) provides that an indictment must be based upon "legally sufficient" and "competent and admissible" evidence before the Grand Jury. Thus, apart from the specific exceptions set forth in CPL 190.30 (2) through (7), "general criminal trial court evidentiary rules normally apply to Grand Jury proceedings" (People v Mitchell, 82 NY2d 509, 513). Those rules include CPL 60.60 (1), which provides that a certificate of conviction "constitutes presumptive evidence of the facts stated in such certificate." The court therefore properly determined that Grand Jury exhibit No. 1 was both "legally sufficient" and "competent and admissible" evidence (CPL 190.65 [1]) establishing defendant's conviction of DWI in Macedon Town Court and supporting the charge of DWI as a class E felony (see, Vehicle and Traffic Law § 1193 [1] [c] [i]).

In seeking to establish before the Grand Jury defendant's alleged prior DWI conviction in St. Lawrence County, the People were permitted but not required to present a certificate of conviction. As an alternative to the rule set forth in CPL 60.60, the People were entitled to resort to "the rules of evidence applicable to civil cases" (CPL 60.10). The People concede that the DMV abstract constitutes hearsay and that it is not admissible as a business record pursuant to CPLR 4518 (c). They contend, however, that it qualifies for admission under both the statutory hearsay exception for records made by public officers (see, CPLR 4520) and the common-law hearsay exception for public documents (see, Consolidated Midland Corp. v Columbia Pharm. Corp., 42 AD2d 601; Prince, Richardson on Evidence § 8-1101, at 688-689 [Farrell 11th ed]).

There is no appellate authority squarely addressing the admissibility of DMV abstracts. The reported decisions addressing that issue have held that they qualify for admission over a hearsay objection based upon the statutory exception (see, People v Meyer, 177 Misc 2d 537, 538, lv denied 92 NY2d 901; People v Pabon, 167 Misc 2d 214, 219), the common-law public document exception (see, People v Carlsons, 171 Misc 2d 943) or both (see, People v Michaels, 174 Misc 2d 982, 986; People v Kollore, 151 Misc 2d 384, 387).

In our view, defendant's DMV abstract falls squarely within the common-law public document exception: "When a public officer is required or authorized, by statute or nature of the duty of the office, to keep records or to make reports of acts or transactions occurring in the course of the official duty, the records or reports so made by or under the supervision of the public officer are admissible in evidence" (Prince, Richardson on Evidence, op cit., at 688). The Commissioner of the Department of Motor Vehicles, a public officer, is required to retain on file certificates of conviction relating to Vehicle and Traffic Law offenses for a minimum of four years (see, Vehicle and Traffic Law § 201 [1] [i]; People v Pabon, supra, at 219; see also, Vehicle and Traffic Law § 514 [1] [a]) and to furnish, upon request, "an abstract of the operating record of any person * * * which abstract shall include enumeration of any convictions of such person of a violation of any provision of any statute relating to the operation of a motor vehicle" (Vehicle and Traffic Law § 354; see, People v Michaels, supra, at 985; People v Kollore, supra, at 388). Thus, because the Commissioner is required by statute to keep a record of defendant's convictions and to make an abstract of driving record enumerating those convictions, defendant's DMV abstract qualifies for admission under the common-law public document exception to the hearsay rule. It is not necessary to decide whether it also qualifies for admission under the much narrower statutory exception (see, CPLR 4520; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4520:1, at 241-242; Prince, Richardson on Evidence, op cit., at 689).

The inquiry into the admissibility of the DMV abstract, however, does not end with the determination that it is admissible over a hearsay objection. Following that determination, the question remains whether the document has been properly authenticated (see, People v Garneau, 120 AD2d 112, 116, lv denied 69 NY2d 880; People v Watson, 167 Misc 2d 441, 446; Alexander, Practice Commentaries, op cit., CPLR C4540:1, at 313; Prince, Richardson on Evidence, op cit., § 9-201). Authentication of official records is governed by CPLR 4540. Subdivision (a) of CPLR 4540 provides in pertinent part that "[a]n official publication, or a copy attested as correct by an officer * * * having legal custody...