A common offense handled by New York criminal defense attorneys, Vehicle and Traffic Law section 511 (“VTL 511”) is a crime in New York where a person operates a motor vehicle while his or her right to do so is suspended. Although there are varying degrees from misdemeanor to felony, one of the most common of these crimes is Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree pursuant to Vehicle and Traffic Law section 511(1)(a) (“VTL 511(1)(a)). New York Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree is defined in general terms as follows:
One is guilty of the of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree when one is operating a motor vehicle (car, truck, etc.) on a public highway (just about any public road, street, etc.). At the same time, one must know or have a reason to know one’s privilege, right or license in New York is suspended, revoked or otherwise withdrawn.
Do not be mistaken, VTL 511(1)(a) is a misdemeanor crime that will give you a criminal record if you are convicted at trial or plea to this offense.
Armed with this general understanding of the law, other than negotiating a deal for a violation of VTL 509, challenging the probable cause that resulted in your vehicle being stopped or attempting to beat the case on procedural grounds, where might your best criminal defense to this charge in New York be? Well, a decision by a New York County (Manhattan) Criminal Court Judge may have added to the body of law that sets forth an alternative defense.
In an attempt to spare you from all of the legal background, an information (the complaint against you) is not sufficient if it contains hearsay. Hearsay, is often described as a statement made by person that is actually attributed to another and is offered for the proof of that statement. In other words, if the police officer says in a complaint that he is informed by Sam that Jack punched Sam, an affidavit must be supplied from Sam stating the truth of that statement that Jack punched him. Otherwise, the statement by the police officer lacks corroboration. Clear?
In VTL 511 cases, whether it is a felony or misdemeanor, prosecutors in New York often rely on boilerplate language with some “fill in the blank” information. This language is corroborated, according to prosecutors, when a DMV abstract is filed that sets for the suspensions. Despite the prosecution’s contentions, this may not be the case in the eyes of the law.
For the purpose of this entry, in People v. Frias-Acevedo, docket number 2009NY092351, the complaint / information alleged that the officer believed that the defendant had knowledge of a suspension because “[t]he defendant was instructed to pay the minimum amount in thirty (30) days or less by a notice sent to the defendant’s last known address. Said notice stated ‘If you do not pay the assessment, the DMV will suspend your driver license, your learner permit, or your driving privileges.'”
While often times courts find that the above statement is not hearsay and is sufficient when corroborated with a DMV abstract, the Frias-Acevedo case may change that. Here, the court ruled that the above statement or basis of knowledge of the officer making that statement is hearsay. This is because the officer is not the source of that information, relying on a secondary source, and is making that statement as truth. Therefore, this hearsay needs to be cured by further paperwork or corroboration. In dismissing the charge of VTL 511, the court stated the following:
“There is no question that the People must establish that the defendant knew or should have known that his license was suspended or revoked to be convicted of Aggravated Unlicensed Operation. See e.g. People v. Abelo, 14 Misc.3d 818, 831 N.Y.S.2d 838 (Sup. Ct. Bronx Co. 2006); People v. Ham, 265 A.D.2d 674, 697 N.Y.S.2d 359 (3rd Dept. 1999)(defendant who indicated that he thought his right to drive a vehicle in New York had been reinstated was entitled to have his guilty plea vacated on appeal). Several courts have held that such allegations must be nonhearsay for facial sufficiency purposes. See e.g. People v. Brown, 15 Misc.3d 1143(A), 841 N.Y.S.2d 821 (Table), 2007 N.Y. Slip Op. 51129(U) (Crim. Ct. N.Y. Co. 2007).”
“In Brown, defendant Gonzalez’ license had been suspended automatically when he failed to make child support payments, after being sent a ‘New York State Important Notice Regarding Your Driving Privileges and Your Failure to Pay Child Support,’ advising:
we will notify the Department of Motor Vehicles to suspend your driving privileges unless you take one or more of the following actions within forty-five days from the date of this notice…The suspension occurs automatically (by computer) sixty days after the Notice is mailed, if the necessary steps are not taken.”
“The court held that these allegations, while providing reasonable cause to believe that Gonzalez had reason to know of the suspension, are nevertheless hearsay, and thus insufficient. However, Judge Mandelbaum notes that the requirement that an information be supported by nonhearsay allegations can be established by evidentiary facts that would be admissible under an exception to the hearsay rule (see People v. Casey, 95 N.Y.2d 354, 361  ). Thus, documentation from the DMV which would satisfy the foundational requirements of the business-records exception (see CPLR 4518(a), (c)), the public-records exception (see CPLR 4520), or the common-law public-documents exception (see Consol. Midland Corp. v. Columbia Pharm. Corp., 42 A.D.2d 601 (2nd Dept 1973) ), if offered in support of the hearsay allegation that a notice of suspension for failure to pay child support (VTL §510[4-e] ) had been mailed to defendant would render the information facially sufficient. See also People v. Pierre, 157 Misc.2d 812, 599 N.Y.S.2d 412 (Crim. Ct. N.Y. Co. 1993) (without a DMV abstract, police officer’s allegation that defendant’s license had been suspended, based on a computer check of DMV records, would be based not upon personal knowledge, but upon hearsay). Moreover, VTL §214 provides that:
The production of a copy of a notice or order issued by the department, together with an electronically-generated record of entry of such order or notice upon the appropriate driver’s license…and an affidavit by an employee designated by the Commissioner as having responsibility for the issuance of such order or notice issued by the department setting forth the suspension or revocation and for the mailing of the notice. The affidavit is presumptive evidence that such notice was produced and mailed in accordance with such procedures.”
“Here, the Complaint specifically alleges that Defendant’s license was suspended for failure to pay a driver’s responsibility assessment, and that Defendant was instructed to pay the minimum amount in thirty days or less by a notice sent to his last know address or his license would be suspended by the DMV. Defendant’s license was not suspended for failure to answer a traffic summons, but rather for his alleged failure to answer a notice sent by the DMV. Yet the People failed to provide a copy of this notice, or an affidavit from an employee of the DMV setting forth the DMV’s procedure for issuing and mailing such notices. As with defendant Gonzalez in Brown, supra, the only allegation supporting the element that Defendant had knowledge of his license being suspended is [the police officer’s] ‘belief’ based upon a computer check of DMV records. Because this allegation is based on facts of which [the officer] has no personal knowledge, we find that the count of Aggravated Unlicensed Operation of a Motor Vehicle has been insufficiently alleged. Defendant’s motion to dismiss this count is accordingly granted.”
Representing the accused in all New York criminal matters, Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors.