People v. Pilatasig (Victor)

People v Pilatasig (2021 NY Slip Op 50125(U)) [*1] People v Pilatasig (Victor) 2021 NY Slip Op 50125(U) [70 Misc 3d 140(A)] Decided on February 19, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 19, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2018-430 Q CR The People of the State of New York, Respondent, against Victor Alfonso Pilatasig, Appellant. Stephen L. Drummond, for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Katherine A. Triffon of counsel), for respondent. Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Althea Drysdale, J.), rendered January 9, 2018. The judgment convicted defendant, upon a jury verdict, of common-law driving while intoxicated, driving while intoxicated per se, aggravated unlicensed operation of a motor vehicle in the third degree and unlicensed operation of a motor vehicle, and imposed sentence. ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of aggravated unlicensed operation of a motor vehicle in the third degree, and dismissing that count of the accusatory instrument; as so modified, the judgment of conviction is affirmed. Insofar as is relevant to this appeal, defendant was charged in an accusatory instrument with common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]), and unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]). Following a combined hearing, the Criminal Court (Karen Gopee, J.) granted "defendant's motion to preclude testimony at trial regarding . . . point-out identification" of defendant on the ground that the People had not provided defendant with a CPL 710.30 identification notice. Thereafter, a jury trial was held following which defendant was convicted of the aforementioned charges. On appeal, defendant contends that the judgment of conviction must be reversed because, among other reasons, (1) the People failed to establish that he had operated the vehicle, and his admission of driving was not corroborated as required by CPL 60.50; (2) the People failed to establish that he knew, or had reason to know, about the suspension of his driver's license; (3) various acts by the prosecutor deprived him of his right to due process and a fair trial; and (4) he received the ineffective assistance of counsel. It is well settled that there is no requirement that a defendant be observed operating a motor vehicle; rather, operation can be established by circumstantial evidence (see People v Cardillo, 64 Misc 3d 25, 26-27 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). In the case at bar, a police officer observed defendant standing next to a white Saturn automobile which was unoccupied and parked at an angle in the street. The officer testified that, in her opinion, the [*2]Saturn had been involved in an accident with a parked BMW vehicle. Defendant informed the officer that he had been driving the Saturn, which was registered to a person living at the same address as defendant, but that he had not hit the BMW. The officer further testified that defendant exhibited signs of intoxication. The foregoing evidence was sufficient to satisfy the corroboration requirement of CPL 60.50 (see People v Booden, 69 NY2d 185 [1987]; People v Beauzyl, 56 Misc 3d 141[A], 2017 NY Slip Op 51118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v Youmans, 34 Misc 3d 143[A], 2012 NY Slip Op 50098[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Consequently, there is no merit to defendant's argument that the People did not establish the element of operation. In order for a defendant to be found guilty of aggravated unlicensed operation of a motor vehicle in the third degree, the People have to prove, beyond a reasonable doubt, that the defendant operated a motor vehicle on a public highway while knowing, or having reason to know, that his license or privilege of operating such a vehicle in New York State, or his privilege of obtaining a license to operate such vehicle issued by the commissioner of the Department of Motor Vehicles (DMV), is suspended, revoked or otherwise withdrawn by the commissioner (see Vehicle and Traffic Law § 511 [1] [a]; People v Pacer, 6 NY3d 504, 508 and n 1 [2006]). At trial, the People sought to have an affidavit of mailing admitted into evidence in order to establish that the notice of suspension of defendant's driver's license was mailed to defendant in December 2015, and that, therefore, defendant knew, or had reason to know, that his driver's license had been suspended. Generally, the receipt of a suspension notice from the DMV suffices to provide notice to the recipient of its contents. Moreover, "proof of proper mailing gives rise to a presumption that the item was received by the addressee," which presumption is created "by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also People v Flores, 62 Misc 3d 46, 56 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Rhodes, 47 Misc 3d 151[A], 2015 NY Slip Op 50794[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v Maldonado, 42 Misc 3d 81, 86 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v Outram, 22 Misc 3d 131[A], 2009 NY Slip Op 50162[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). The contents of an affidavit of mailing regarding the DMV's mailing practices of suspension notices, and whether those practices were followed in defendant's case, amounts to "a direct accusation of an essential element of the crime"; it is accusatory hearsay, and is not admissible as a business record (People v Pacer, 6 NY3d at 510). The Confrontation Clause requires that these matters be established by a witness amenable to cross-examination (see People v Pacer, 6 NY3d at 512). Pursuant to Crawford v Washington (541 US 36, 53-54 [2004]), such an affidavit is testimonial in nature and, therefore, cannot be admitted into evidence pursuant to Vehicle and Traffic Law § 214 without violating a defendant's Sixth Amendment right to confrontation (see People v Pacer, 6 NY3d at 509-510). Nevertheless, mailing of a suspension notice can be established by a witness's testimony, based on personal knowledge, of the DMV's mailing practices and procedures at the time the suspension notice is alleged to have been mailed because such testimony permits meaningful cross-examination as to the nature of those procedures and whether they were actually followed (see e.g. People v Francis, 114 AD3d 699, 700 [2014]). Here, the People's DMV witness provided no testimony regarding the DMV's standard office practices and procedures for mailing suspension notices. Consequently, the People failed to establish that defendant knew, or had reason to know, that his license had been suspended, and, thus, the evidence was legally insufficient to establish defendant's guilt, beyond a reasonable doubt, of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). Defendant argues on appeal that his Sixth Amendment right to confrontation was violated because the People improperly elicited evidence of his identification which violated the hearing court's order that precluded testimony regarding the point-out identification. We disagree. At [*3]trial, the police officer testified that, once she arrived at the scene, she "approached the white Saturn ... [alongside] which was standing . . . the person that was driving the white Saturn." Defense counsel objected, which objection the Criminal Court overruled. The officer then testified that she spoke to an eyewitness after which she arrested defendant. The officer did not violate the hearing court's order, as she provided no testimony regarding a point-out identification by the eyewitness and did not testify regarding what the eyewitness said to her. Viewing the foregoing evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), and indulging in all reasonable inferences in the People's favor (see People v Ford, 66 NY2d 428, 437 [1985]), we find that the evidence was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of common-law driving while intoxicated, driving while intoxicated per se, and unlicensed operation of a motor vehicle. Defendant's arguments that the acts by the Criminal Court and the prosecutor deprived him of due process and a fair trial, are made for the first time on appeal and, therefore, are unpreserved for appellate review (see CPL 470.05), and we decline to address them in the interest of justice. Furthermore, upon a review of the record, we find that defendant received the effective assistance of counsel under the federal and state standards (see Strickland v Washington, 466 US 668 [1984]; People v Benevento, 91 NY2d 708, 713-714 [1998]). Defendant's remaining contentions lack merit or error, if any, was harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]). Accordingly, the judgment of conviction is modified by vacating the conviction of aggravated unlicensed operation of a motor vehicle in the third degree and dismissing that count of the accusatory instrument. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: February 19, 2021