This is an apparent case of first impression, where a Pennsylvania resident, possessing a suspended Pennsylvania license is charged with one count of aggravated unlicensed operation in the third degree (VTL §511[1][a]) and one count of unlicensed driving (VTL §509[1]) here in New York.

The Defendant, Manuel Rivera moves for an order inter alia: dismissing the accusatory instrument for facial insufficiency. That motion is denied.

An accusatory instrument upon which the defendant may be held for trial "must allege facts of an evidentiary character' (CPL §100.15[3]) demonstrating reasonable cause to believe that the defendant committed the crime charged (CPL §100.40[4][b]; People v. Dumas, 68 NY2d 729, 731 [1986]). Further, a valid criminal court information must contain non-hearsay factual allegations, which, if true, establish every element of the offense charged and the defendant's commission thereof. " (CPL §100.40[1][c]). A failure to allege every element of the offense charged is a jurisdictional defect. (People v. Kalin, 12 NY3d 225, 229 [2009]; People v. Casey, [*2]95 NY2d 354, 364 [2000]).

In determining the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. (People v. Contes, 60 NY2d 620, 621 [1983]). "That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry " (People v. Deegan, 69 NY2d 976, 979 [1987]). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (citations omitted.)" (People v. Casey, 95 NY2d at 360).

The within accusatory instrument states that on February 26, 2011, at about 5:40 P.M. on the corner of 40th Street and Dyer Avenue in the County and State of New York:

Deponent states that he observed the defendant operating a motor vehicle (the key was in the ignition, the engine was running and the defendant was behind the wheel) on a public highway, to wit the above location. Deponent states that he conducted a computer check for the records of the Pennsylvania State Department of Motor Vehicles which revealed that the defendant's license was suspended in Pennsylvania and has not been reinstated.

Deponent further states that the deponent's basis for believing that the defendant had reason to know defendant's license was suspended is as follows: defendant admitted to the deponent that defendant's license was suspended.

The Court finds that the charge of VTL §511(1)(a) is facially sufficient. Contrary to the defense's assertions, the accusatory instrument contains sufficient factual allegations pertaining to the defendant having knowledge that his license was suspended. A violation of VTL §511(1)(a) occurs when a person "operates a motor vehicle upon a public highway while knowing or having reason to know that such person's 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 is suspended, revoked or otherwise withdrawn by the commissioner (emphasis added)." In order to prove VTL §511(1)(a), the People must establish that the defendant driver knew or should have known that his license was suspended. (See e.g. People v. Abelo, 14 Misc 3d 818, 831 NYS2d 838 [Sup Ct Bronx Co 2006]; People v. Ham, 265 AD2d 674, 697 NYS2d 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]). Therefore, aggravated unlicensed operation in the third degree has a mens rea element: knowledge - knowledge that one is not licensed to drive in New York. (See People v Osier, 17 AD3d 609, 795 NYS2d 59 [2d Dept 2005], app den, 5 NY3d 767, 834 NE2d 1271, 801 NYS2d 261 [2005]; People v Carlsons, 171 Misc 2d 943, 944, 656 N.Y.S.2d 116 [Nassau Dist Ct 1997]).

While VTL §511, and, in fact, the entire VTL, is unduly complex in and of itself, this specific case is further complicated by the existence of a license suspension from another jurisdiction. While the accusatory instrument demonstrates that the defendant was fully aware of his suspended license, a Pennsylvania license that was suspended on October 2, 2009, this case rests solely on whether the defendant knew or should have had reason to know that he was unable to operate a motor vehicle in the state of New York.

Defense argues that the prosecution is unable to show that the defendant had reason to know his driving privileges were suspended in New York State. The prosecution relies heavily [*3]on VTL §516, the Driver License Compact. This compact is a multi-jurisdictional agreement mandating that each member state to treat traffic vehicular convictions with reciprocal recognition. (VTL §516 [Article I, Section 2]). Traffic offenses subject to the compact include such offense as operating a motor vehicle while under the influence of an alcohol or a drug, any speeding offense and reckless driving. (VTL §516[b][c]). Furthermore, all states have access to the National Driver's Registry, which can easily be accessed by computers within police cars. In this case, the arresting officer conducted such a computer check with the State Department of Motor Vehicles, where record of his suspension was indicated. (See McGuire v. City of New York, 2004 WL 307308 [2004]). The accusatory instrument lists that the arresting officer had checked computer records and retrieved appropriate documentation indicating that the defendant had a suspended Pennsylvania license. Therefore, the computer search results provide that the accusatory instrument alleges facts sufficient to provide reasonable cause to believe that the defendant committed the offense charged. (CPL §100.40[4][b]).

There is also sufficient prima facie evidence in this case to support that the defendant had "reason to know" that his license was suspended and that he did not have the privilege to operate a motor vehicle. This is further demonstrated by the defendant's alleged admission, which is part of the complaint. Typically, notice of suspension is often difficult to prove. People v. Parson indicates the difficulty in "proving beyond a reasonable doubt that the defendant driver received notice of the suspension." (People v. Parson, 143 Misc 2d 592, 541 NYS2d 321 [City Court 1989]). But that is an issue for trial, not one for facial sufficiency. This admission, if proven at trial, further qualifies as "a non-hearsay allegation that adequately supports the element that defendant knew his license was suspended." (People v. Clinkscales, 3 Misc 3d 333, 774 NYS2d 308 [NY District Ct. 2004]; See, also People v. Santiago, 168 Misc 2d 883, 645 NYS2d 746 [City Crim Ct 1996]). Furthermore, this defendant knowingly took the risk of driving with his suspended Pennsylvania license. Presumably, common sense dictates that one who has a suspended license in any of New York's sister states should not be operating a motor vehicle under any circumstance in New York. Thus, the defendant's Pennsylvania license suspension should in fact carry across state borders and the charge of VTL §511(1)(a) is found to be facially sufficient. Simply put, if it can be proven that you knew your license was suspended in your home-state then you clearly should not be driving in any of the other states of our union.

In addition, the charge of VTL §509(1) is also facially sufficient for the same reasons outlined above. VTL §509(1) holds that "No person is shall operate or drive a motor vehicle upon a public highway of this state unless he is duly licensed." Accordingly, this Court finds that the factual allegations, as set forth in the within instrument, are sufficient, at the pleading state, to support the charges, and the defendant's motion to dismiss the charge of aggravated unlicensed operation in the third degree and the charge unlicensed driving is denied.

This opinion shall constitute the decision and order of the Court.

Dated: July 5, 2011____________________________

New York, New YorkMatthew A. Sciarrino, Jr.

Judge of the Criminal Court