Brooklyn Boro

Brooklyn appellate panel reverses conviction for unlicensed driver

May 5, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
The courthouse located at 141 Livingston St. in Downtown Brooklyn houses the Appellate Term for the 2nd, 11th and 13th Judicial Districts. Eagle file photo
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A Brooklyn appellate panel reversed a criminal defendant’s conviction due to the government’s failure to establish how drivers’ license suspension notices are delivered to the post office for mailing.

In a per curium — unsigned — majority opinion, three judges of the Appellate Term for the 2nd, 11th and 13th Judicial Districts ruled last month that while Brooklyn prosecutors provided a facially sufficient charge against the defendant for operating a vehicle without a license, the “interest of justice” required a reversal of the defendant’s 2011 conviction.

The defendant, Ian Scott, was convicted following a nonjury trial in November 2011. Prosecutors charged that Scott illegally operated a car by driving without a valid license. The specific charge — aggravated unlicensed operation of a motor vehicle in the third degree — requires that the defendant knew or had reason to know that his license was suspended or otherwise invalid.

When a police officer stopped Scott’s car and ran his Department of Motor Vehicles (DMV) records, it was discovered that Scott’s “driving privilege had been suspended on Aug. 5, 2009, as a result of [his] failure to answer or appear in response to a traffic summons,” court records show.

DMV traffic summonses note that “if you don’t answer this ticket by mail within 15 days your license will be suspended” and the “Department of Motor Vehicles mails a notice of suspension to any such person at their last known address.”

Brooklyn prosecutors argued that Scott’s traffic summons contained adequate notice and warning that his license would be suspended for failure to appear on the traffic case.  

Scott, however, challenged that there was no proof that he received the traffic summons or a subsequent license suspension notice for his failure to answer.

At trial, prosecutors supplied a DMV witness from the Brooklyn DMV office to testify, as to the DMV’s standard procedure for mailing suspension notices. The witness noted that a DMV representative in Albany mails DMV license suspension notices to license holders and that the mailings are done through the U.S. Postal Service.

However, the witness was unable to describe how the DMV notices were delivered to the post office for mailing. Due to the lack of evidence as to specific mailing practices, the Brooklyn judges found that “no presumption arose that defendant [Scott] had received the suspension notice.”

In other words, prosecutors could not show that Scott had reason to know that his license had been suspended since it could not be established that the DMV notice was delivered to the post office for proper mailing.  Unable to establish a key component of aggravated unlicensed operation of a motor vehicle in the third degree, the prosecution’s case and Scott’s conviction were reversed “on the law and as a matter of discretion in the interest of justice.”

Appellate Justices Michelle Weston, Martin M. Solomon and David Elliot sat on the panel.

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