Opinion
2016-3052 N CR
04-11-2019
The PEOPLE of the State of New York, Respondent, v. Shahidah HAGANS, Appellant.
Nassau County Legal Aid Society (Tammy Feman and Marquetta Christy of counsel), for appellant. Nassau County District Attorney (Yael V. Levy, Andrea M. DiGregorio, Barbara Kornblau and W. Thomas Hughes of counsel), for respondent.
Nassau County Legal Aid Society (Tammy Feman and Marquetta Christy of counsel), for appellant.
Nassau County District Attorney (Yael V. Levy, Andrea M. DiGregorio, Barbara Kornblau and W. Thomas Hughes of counsel), for respondent.
PRESENT: THOMAS A. ADAMS, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
ORDERED that the judgments of conviction are reversed, on the law, the accusatory instruments are dismissed, and the fines, if paid, are remitted.
Insofar as is relevant to this appeal, the People charged defendant, in separate simplified traffic informations, with aggravated unlicensed operation of a motor vehicle in the third degree ( Vehicle and Traffic Law § 511 [1] [a] ) and driving without a license ( Vehicle and Traffic Law § 509 [1] ), respectively. It is undisputed that, at arraignment, the accusatory instrument charging defendant with aggravated unlicensed operation of a motor vehicle in the third degree had, annexed to it, a form called a "supporting deposition/bill of particulars-aggravated unlicensed operation" which includes a space for a ticket number that was filled in with the number of the ticket charging defendant with aggravated unlicensed operation of a motor vehicle in the third degree. Subsequently, defendant's attorney served a demand for supporting depositions. Defendant then moved to dismiss the two aforementioned accusatory instruments, along with five others, on the ground that, in response to that demand, the People had improperly mailed seven supporting depositions to her rather than to her attorney. The court denied the motion with respect to the two accusatory instruments at issue here, finding that the seven supporting depositions that were served upon defendant did not satisfy the requirements of the statute, but that the above-mentioned supporting deposition/bill of particulars attached to one of the accusatory instruments supported both charges. After a nonjury trial, defendant was convicted of both charges.
On appeal, defendant argues that the simplified traffic information charging her with aggravated unlicensed operation of a motor vehicle in the third degree is facially insufficient in that the annexed supporting deposition fails to allege an element of that offense. However, since defendant did not move to dismiss the instrument on the ground that the annexed supporting deposition does not comply with the requirements of CPL 100.25, she waived her facial sufficiency contention regarding that supporting deposition (see People v. Key , 45 NY2d 111 [1978] ; People v. Appel , 44 Misc 3d 133[A], 2014 NY Slip Op 51152[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014] ). Defendant correctly argues, however, that facts alleged in the supporting deposition annexed to the simplified traffic information charging her with aggravated unlicensed operation of a motor vehicle in the third degree could not be considered to support the facial sufficiency of the simplified traffic information charging her with driving without a license (see People v. Bullock , 42 Misc 3d 141[A], 2014 NY Slip Op 50211[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v. Tucker , 32 Misc 3d 135[A], 2011 NY Slip Op 51467[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011] ), as the sufficiency of an accusatory instrument is determined based only on the allegations set forth "within the four corners of the instrument itself or in annexed supporting depositions" ( People v. Thomas , 4 NY3d 143, 146 [2005] ). In view of the foregoing, and as we cannot review the District Court's determination in favor of defendant, i.e., that the supporting deposition with respect to the instrument charging driving without a license, which deposition was mailed only to defendant and not to defendant's attorney, was insufficient (see CPL 470.15 [1] ; People v. Concepcion , 17 NY3d 192 [2011] ; People v. LaFontaine , 92 NY2d 470 [1998] ), the judgment convicting defendant of driving without a license is reversed and the accusatory instrument charging that offense is dismissed.
To convict defendant of aggravated unlicensed operation of a motor vehicle in the third degree in violation of Vehicle and Traffic Law § 511 (1) (a), the People had to prove, beyond a reasonable doubt, that, on the date of her arrest, defendant had "operate[d] a motor vehicle upon a public highway while knowing or having reason to know that [her] license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner [was] suspended, revoked or otherwise withdrawn by the commissioner." In order to establish that defendant knew, or had reason to know, that her license had been suspended, the People sought to prove that the suspension notice had been properly mailed to defendant so that they could then invoke the rebuttable presumption that this notice had been received by defendant (see e.g. Residential Holding Corp. v. Scottsdale Ins. Co. , 286 AD2d 679 [2001] ). The People's witness, an employee of the Department of Motor Vehicles (DMV), testified that the suspension notice had not been mailed to the address on file with the DMV or to a current address provided by the United States postal service (see Vehicle and Traffic Law § 214 ). Rather, it had been mailed to an address provided by the court from which the summons giving rise to the suspension had originated, which the witness testified is the custom of the DMV because such addresses are usually more current. This testimony was insufficient to demonstrate that this was an address that defendant had provided, and the People failed to demonstrate a connection between defendant and that address. Under the circumstances, we find that the People failed to establish that defendant knew, or had reason to know, that her license or privilege of operating a motor vehicle in New York had been "suspended, revoked or otherwise withdrawn by the commissioner."
Accordingly, the judgments of conviction are reversed, the accusatory instruments are dismissed, and the fines, if paid, are remitted.
ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.