In this New York City criminal case, the Defendant was charged by Superseding Information with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, in violation of VTL §511(2)(a)(ii), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of VTL 511(1)(a), and Unlicensed Driving, in violation of VTL 509(1). The accusatory instrument stated that “on March 25, 2015, the defendant was observed operating a motor vehicle in New York County. Her privilege of operating a motor vehicle had been revoked for a driving while intoxicated conviction and for a refusal to submit to a chemical test, and had not be reinstated.”
The Defendant challenges the accusatory instrument as insufficient and, therefore, the People could not have answered ready. Often times, prosecutors (even if called something else) will file an accusatory instrument based on hearsay declarations. Also, for one reason or another, a Defendant (via counsel) will waive his or her right to be prosecuted by a legally sufficient accusatory instrument. The Court states the nonhearsay requirement for a misdemeanor complaint to be converted to an information:
In order for a misdemeanor complaint to be converted to an information the factual portion of the instrument and any supporting depositions must contain “[n]on-hearsay allegations” that establish, “if true, every element of the crime charged and defendant’s commission thereof.” CPL §100.40(1)(c); People v. Alejandro, 70 NY2d 133, 135 (1987). However, the requirement that there be non-hearsay allegations in support of every element can be met where the allegation, even if not based on the declarant’s first-hand knowledge, would be admissible under “some hearsay rule exception.” People v. Casey, 95 NY2d 354, 361 (2000).
The Court finds that the officer could not have possibly known, based on his own personal knowledge, of the license revocation:
An essential element of the offenses underlying the VTL §511 Counts is that the defendant operated a motor vehicle “while knowing or having reason to know” that her driver’s license was suspended or revoked. The Court agrees that SSI fails to plead, by non-hearsay allegations, this element of the charges.
The People (who do offer a mailing record) do not provide the appropriate nonhearsay evidence to support such a charge. Since the accusatory instrument is insufficient (and the Defendant did not waive this right), the Court finds that the People could not answer ready on such an instrument:
Because the misdemeanor complaint was never converted into an information, all of the People’s statements of readiness were illusory, and none of their date requests were effective. E.g., People v. Peluso, 192 Misc 2d 33 (Crim Ct Kings County 2002) (statement of readiness illustory); People v. Tisdale, 18 Misc 3d 1125(A) (Crim Ct Kings County 2008) (same); People v. Seepersad, 52 Misc 3d 400, 407 (Crim Ct NY 20016) (only post-readiness date requests are honored). The case is accordingly past 30.30.
The accusatory instrument is dismissed; however, “[t]he Unlicenced Driving charge (VTL §509) is a traffic infraction, and CPL §30.30 does not apply.” Should you be facing criminal charges, whether it be unlicensed operation or driving while under the influence of alcohol, call the Law Offices of Cory H. Morris: 631-450-2515
The case is The People v. Valerio, 2015NY024223, NYLJ 1202775260416, at *1 (Crim., NY, Decided December 5, 2016)