Defendant stands before this court charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, an unclassified misdemeanor, in violation of Vehicle and Traffic Law § 511(1)(a). The charge stems from an alleged incident that took place in the City of Beacon on January 2, 2022. By Notice of Motion and attorney affirmation, Defendant is seeking various forms of pre-trial relief. The People of the State of New York, represented by Lily Gebru, Esq., have filed an Affirmation in Response opposing Defendant's motion. The Court has reviewed the Defendant's moving papers and accompanying affidavit, the Affirmation in Response filed by the People, and the relevant statutes and case law. The Courts findings of fact and conclusions of law are set forth below.

The Court will address the section of Defendant's motion seeking dismissal of the accusatory instruments on facial insufficiency grounds first, as determination of that issue will be dispositive. As a threshold issue, the People argue that Defendant's omnibus motion, filed 216 days after the People's filing of their Certificate of Compliance and Statement of Readiness, should be summarily rejected as untimely. Specifically, the People argue that the motion is [*2]untimely pursuant to Criminal Procedure Law § 255.20(1) which states in relevant part that [e]xcept as otherwise expressly provided by law, whether a defendant is represented by counsel or elects to proceed pro se, all pre-trial motions shall be served or filed within forty-five (45) days after arraignment and before commencement of trial." The statute, however, further states that such motions shall be served or filed within forty-five (45) days . . . or within such additional time as the court may fix upon application of the defendant made prior to the entry of judgment(CPL 255.20[1], emphasis added). At the October 5, 2022 court appearance Defendant requested an opportunity to file motions, and the Court, without objection from the People, set forth a motion schedule. Additionally, the Defendant has raised facial sufficiency arguments relative to accusatory instrument. Such a potential defect is a non-waivable jurisdictional issue which can be raised at any time particularly when an element of the offense is at issue (People v. Casey 95 NY2d 354 [Court of Appeals, 2000], New York v. Scott, 47 Misc 3d 138(A) [App. Term, 2nd Dep't, 2015]). In fact, this issue was squarely addressed by the Appellate Term of the 2nd Department in Scott, cited above, which held that facially insufficiency challenges to an information, "may be asserted at any time" under the circumstances currently before the Court. As such, the Court finds it necessary and prudent to address the underlying arguments in Defendant's motion.

Defendant alleges the accusatory instrument charging Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree is facially insufficient as there are no non-hearsay or factual allegations in the accusatory supporting the element of the offense that requires the Defendant knew or had reason to know that his license was revoked, suspended or otherwise withdrawn by the commissioner. The People's affirmation in opposition to Defendant's motion did not address this substantive issue, and instead, as discussed above, requested the Court summarily deny Defendant's motion as untimely.

For an accusatory instrument to constitute a valid, facially sufficient information, several requirements must be met. Pursuant to Criminal Procedure Law Section § 100.40(1) an information is facially sufficient when:

a) It substantially conforms to the requirements prescribed in § 100.15; and

b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.

In relevant part, Vehicle and Traffic Law § 511(1)(a) provides that "[a] person is guilty of aggravated unlicensed operation of a motor vehicle in the third degree when such 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 a motor vehicle in this state . . . is suspended, revoked or otherwise withdrawn by the commissioner."

The People have the burden to establish that the above referenced requirements are met, and that an accusatory instrument is facially sufficient (People v. Jones, 9 NY3d 259 [2007]). Facial sufficiency is a non-waivable jurisdictional prerequisite to a prosecution and a defect in the accusatory requires dismissal (People v. Alejandro, 70 NY2d 133 [1987]). The court's review [*3]of the factual allegations is confined to the four corners of the instrument itself and any supporting depositions (People v. Thomas, 4 NY3d 143 [2005]). However, when reviewing an accusatory instrument for facial sufficiency the court must view the facts in a light most favorable to the prosecution (People v. Vonancken, 27 Misc 3d 132(A) [App. Term 2d Dept. 2010]). Furthermore, the court should not hold the prosecution to the high threshold of the proof beyond a reasonable doubt standard necessary at trial (People v. Henderson, 92 NY2d 677 [1999]). Additionally, "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" (People v. Konieczny, 2 NYS3d 569 [2000]).

In the instant matter, the accusatory instrument fails to satisfy CPL 100.40(1)(b) as it does not provide reasonable cause to believe the defendant committed the offense charged. Reasonable cause to believe a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary and reasonable intelligence that it is likely that such offense was committed, and such person committed it. CPL 70.10(2). In the accusatory instrument, Officer Rath alleges that the Defendant knowingly, intentionally and unlawfully operated a motor vehicle which was involved in an accident. Officer Rath further states that while confirming the Defendant's identity through NYS EJustice Portal he learned that the Defendant's driver's license privilege was suspended for a total of 4 scoffs (4 on 1 date) for failure to answer a summons in Orange County, Town of Walkill on 12/10/21, and lists the suspension order numbers. "In order for an information to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be alleged" (People v. Maksymenko, 109 Misc 2d 171, [App. Term, 2nd Dep't, 1981]). The accusatory instrument does not provide reasonable cause to believe that the defendant committed the offense of aggravated unlicensed operation of a motor vehicle in the third degree as the factual portion of the accusatory instrument fails to articulate every element of the offense. The accusatory instrument simply alleges that the Defendant was operating a motor vehicle and that the EJustice Portal indicated that the Defendant's license was suspended. However, the accusatory instrument fails to allege that the Defendant operated the motor vehicle while knowing or having reason to know that his license or privilege of operating a motor vehicle was suspended as required by the statute.

The accusatory instrument also fails to satisfy CPL § 100.40(1)(c) as it does not contain non-hearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof. This subsection is often referred to as the prima facia case requirement as "a facially sufficient information must contain enough factual allegations to establish a prima facia case" (People v. Shawn L., 40 Misc 3d 1237(A) [2013]. As mentioned above, Officer Rath further states that while confirming the Defendant's identity through NYS EJustice Portal he learned that the Defendant's drivers license privilege was suspended for a total of 4 scoffs (4 on 1 date) for failure to answer a summons in Orange County, Town of Walkill. The EJustice Portal report is not annexed to the accusatory instrument. Similarly, a certified copy of the Defendant's Department of Motor Vehicles abstract is also not annexed to or otherwise made part of the accusatory instrument. The accusatory does not state how or when the Defendant was notified of the suspension, or that he knew or had reason to know that his license was suspended. The accusatory instrument does not articulate non-hearsay allegations tending to [*4]establish every element of the offense charged and the Defendant's commission thereof, and the failure to do so is fatal (People v. Peterson, 2017 NY Misc. LEXIS 2036 [City Court, City of Poughkeepsie, 2017]).

In view of the foregoing, the motion to dismiss the accusatory instrument on facial insufficiency grounds is GRANTED and it is therefore unnecessary for the Court to address the other issues raised in Defendant's Notice of Motion.

The foregoing shall constitute the Decision and Order of this court.