Summary of the Court's Decision

The defendant, Julian Aspicueta, is charged with Driving by Unlicensed Operator (V.T.L. § 509.1)^[FN1] . The defendant moves this Court to dismiss the accusatory instrument on facial sufficiency grounds and on speedy trial grounds. The People, by written response, oppose the defendant's motion. After reviewing the defendant's motion, the People's response, and the court file and record, this Court makes the following findings.

In analyzing the facial sufficiency of the accusatory instrument, this Court must presume true all non-hearsay, evidentiary allegations of the information and any supporting documentation. See P.L. § 100.40(1)(c) ("[T]he non-hearsay allegations of the factual part of the information . . . [must] establish, if true, every element of the offense charged and the defendant's commission thereof.") (emphasis added); People v. Casey, 95 NY2d 354, 360 (2000) (quoting P.L. § 100.40(1)(c)).

Between 12:10A.M. and 12:22A.M., at the intersection of Ditmars Boulevard and 102 Street, on September 28, 2018, deponent Officer Seth Friedman responded to a vehicular [*2]accident and observed the defendant sitting in the driver's seat of a 2007 Chevrolet Suburban. The defendant was unable to produce "a valid driver's license". The defendant said, "I was driving and the guy cut me off." Officer Friedman reviewed New York DMV records for the defendant, and said records showed that the defendant's license to operate a motor vehicle was suspended on one date, August 8, 2018, and is presently suspended.

Also filed with the information, was the 'supporting' deposition, a copy of the defendant's New York DMV abstract. The abstract shows that the defendant's license was suspended pending prosecution on August 28, 2018 and that the defendant was granted a hardship driving privilege the same day.

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." People v. Smalls, 26 NY3d 1064, 1066 (2016) (quoting People v. Dreyden, 15 NY3d 100, 103 (2010)); see also C.P.L. §§ 170.30; 170.35. Such a facially sufficient and valid misdemeanor information must contain non-hearsay, non-conclusory, factual allegations of an evidentiary character that establish every element of, and constitute reasonable cause to believe the defendant committed the charged offenses. See C.P.L. §§ 70.10; 100.15(3); 100.40(1)(b) & (c); People v. Alejandro, 70 NY2d 133 (1987); People v. Dumas, 68 NY2d 729 (1986). Further, "[s]o 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." People v. Ocasio, 28 NY3d 178, 180 (2016) (quoting People v. Casey, 95 NY2d 354, 360 (2000)).

Here, defendant argues that the complaint doesn't sufficiently allege that the defendant was driving while his driving privileges were suspended. Defendant relies on the People's own supporting deposition, the defendant's abstract, which shows that defendant received a hardship license a month prior to the stop and that the defendant's license was valid at the day and time of the stop. Defendant also relies on the Court's arraignment finding that the complaint was facially insufficient and the Court's order that People file a superseding information to cure the defect.

Instead of filing a superseding information^[FN2] , attempting to explain the inconsistencies between their supporting deposition and the criminal court complaint, and/or dismissing the charge, the People filed a written response to the instant motion, requoting the boilerplate language in the complaint, "Deponent further states that he obtained and read a teletype printout of the New York State Department of Motor Vehicles, which records are made and obtained in the regular course of business within a reasonable time after the event or occurrence, and said records showed that the defendant's license to operate a motor vehicle was suspended on one occasion and is presently suspended."

Inconsistent factual allegations between the criminal court complaint and supporting deposition fail to establish that the defendant drove without "a valid driver's license" on September 28, 2018 between 12:10A.M. and 12:22A.M. at the intersection Ditmars Boulevard and 102 Street, at the time of the stop, a requisite of V.T.L. § 509(1). Accordingly, the defendant's motion to dismiss on facial sufficiency grounds is GRANTED.

Defendant's motion for dismissal pursuant to C.P.L. § 30.30 is therefore DENIED AS MOOT.

Further, it is ORDERED that sealing of this case be STAYED for 30 days

This constitutes the decision and order of this Court.