A bench trial was held in this proceeding charging the defendant with one count of Excessive Speeding (VTL §1180(a)); one count of Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL §511(2)(a)(iv)); one count of Failure to Exhibit Driver’s License (VTL §507(2)); one count of Possession of Alcohol in a Motor Vehicle (VTL §1227(1)); one count of Driving While Intoxicated (VTL §1192(3)) and one count of Driving While Ability Impaired (VTL §1192(4)(a)). At trial, PO Donovan Yoe of the Mount Vernon Police Department testified that on January 21, 2019 at approximately 2:15 pm he was on routine patrol with PO Riley in a marked vehicle when he first observed the defendant driving a black BMW X5 southbound on Gramatan Avenue in Mount Vernon at an excessive speed. PO Yoe testified that defendant’s vehicle was traveling approximately 50 mph in a 30 mph speed zone. They pulled over the defendant’s vehicle and defendant exited the vehicle. PO Yoe testified that PO Riley directed the defendant to get back inside his vehicle, which he eventually did. They asked the defendant for his license and registration to which defendant responded that he didn’t have either of them. They gave defendant false impersonation warnings after which defendant gave them his first and last name. Upon running the information provided in eJustice, dispatch advised the officers that defendant had a suspended license. PO Yoe identified the defendant as being the driver of the vehicle. They advised the defendant that he had a suspended license and asked him to step out of the vehicle. PO Yoe testified that he smelled alcohol on the defendant’s breath but there were no signs that he was unsteady on his feet. PO Yoe further testified that defendant stated in sum and substance that he had a little weed on him. Based upon the information from dispatch and defendant’s statement, he was removed from the vehicle and placed in handcuffs. PO Yoe stated that they asked him where the weed was to which defendant responded in sum and substance that it was in a red pouch that was attached to his chest. The officers removed the pouch and when they opened it up they observed a bunch of individually wrapped marijuana in the pouch which they recognized based upon their training and experience as well as it possessing the odor of marijuana. Both the pouch and the marijuana were entered into evidence as People’s Exhibit “20″ and “21″. PO Yoe testified that he did not know if the substance found in the pouch was sent to the lab. After recovering the marijuana, they patted down the defendant and recovered a small bottle of Baileys liquor from the defendant’s coat pocket which was empty but closed. Defendant was then placed under arrest and transported to the cell block at the Mount Vernon police headquarters. PO Yoe testified that while at police headquarters the defendant was irate, kicking and punching the walls and gate of the cell block. PO Yoe further testified that the defendant spontaneously stated in sum and substance that he had smoked marijuana earlier in the day and that he is a Rastafarian and that’s just what they do. According to PO Yoe, PO Riley then read the defendant DWI warnings two times and asked the defendant if he would perform the standardized field sobriety tests but the defendant refused to do so. A copy of the DWI warnings was entered into evidence as People’s Exhibit “17.” PO Frank Riley also testified for the People. PO Riley testified that he and PO Yoe were in their police vehicle facing northbound on Gramatan Avenue when they observed a black BMW traveling at an extremely high rate of speed southbound on Gramatan Avenue. They activated their vehicle’s lights and pulled over the black BMW. After getting pulled over the defendant exited his vehicle and attempted to walk away from area. After multiple verbal commands the defendant re-entered his vehicle. PO Riley testified that upon approaching the vehicle the defendant spontaneously stated in sum and substance “all I got is weed on me”. PO Riley testified that they asked the defendant for his license and registration but that the defendant was unable to produce either of them. PO Riley further testified that upon approaching the defendant he smelled a very strong odor of marijuana emanating from both the defendant and his vehicle. They read the defendant his false personation warnings after which defendant stated his name, date of birth and current address. PO Riley testified that the defendant indicated that he had some marijuana in a red pouch he was wearing and further stated in sum and substance that he was Rastafarian and smoking weed is a thing that they do. He further stated that they had run defendant’s information over dispatch and they learned that defendant’s license was suspended 7 times, 6 on 4 dates. The defendant was then placed under arrest and subsequently brought back to the Mount Vernon police department cell block. After the defendant was placed under arrest, PO Riley conducted a search of the defendant’s person and at that time discovered a small bottle of Baileys liquor in his coat pocket. The bottle was empty but closed. PO Riley further testified that he asked the defendant about the Baileys bottle to which defendant responded that it was just something smooth and small that he drank. PO Riley stated that while at the cell block he noticed the defendant’s eyes were glassy and he became irate and screamed and kicked the cell bars. Based upon his observations that defendant had glassy eyes and smelled of marijuana, PO Riley read defendant the DWI warnings to the defendant twice and both times he refused to submit to either the standardized field sobriety tests or a chemical breath test. Based upon his statements regarding the marijuana and the Baileys liquor coupled with the defendant’s physical actions and appearance he and PO Yoe determined that the defendant was under the influence of drugs and/or alcohol and charged him accordingly. Ricardo Cumberbatch of the NYS DMV also testified at trial. Mr. Cumberbatch, who is a NYS DMV motor vehicle representative, testified that he handles enforcement, registration and licensing at the DMV and as such, he is familiar with the records kept by the NYS DMV including certified drivers’ abstracts. The defendant’s certified driving abstract was entered into evidence as People’s Exhibit “9″. Mr. Cumberbatch testified that defendant’s license was suspended on June 8, 2017 for failure to pay a driver assessment fee and that his license has been suspended ever since that date. Mr. Cumberbatch, who works at the Yonkers office of the DMV, testified that the standard procedure for suspension notifications is for them to be sent to the driver by mail to the address each licensed driver has on file with the NYS DMV by the NYS DMV office in Albany, New York. Mr. Cumberbatch further testified that it is the driver’s responsibility to notify and update the NYS DMV if they have a change of address. Mr. Cumberbatch testified that he did not have any direct knowledge whether the suspension notifications were sent to the defendant by the Albany office of the DMV. Moreover, Mr. Cumberbatch did not testify as to the procedures used by the Albany DMV office regarding the mailing of suspension notifications. A review of the defendant’s driver’s abstract reveals that on January 21, 2019 the defendant had 7 suspensions on 5 dates, of which 6 were scofflaws on 4 dates. The abstract establishes the following suspensions on defendant’s driver’s license: one suspension on June 8, 2017 for failure to pay driver assessment fee (nonscofflaw); one suspension on December 11, 2018 for failure to pay a fine (scofflaw); one suspension on November 6, 2018 for failure to pay a fine (scofflaw); two suspensions on July 4, 2018 for failure to pay fines (scofflaw); and two suspensions on May 22, 2018 for failure to answer a summons (scofflaw). Three suspension notices, dated October 15, 2018, April 30, 2018 and July 3, 2018, along with their respective mailing records, are part of the defendant’s certified driver abstract entered into evidence. All three notices are addressed to the defendant at the following address: 4938 Cason Cove Dr 1, Orlando, Florida 32811. The defendant’s address as listed on the driver’s abstract is 8 Washington Ave 9, Hastings on Hudson, New York 10706. With respect to the counts of Possession of Alcohol in a Motor Vehicle (VTL §1227(1)), Driving While Intoxicated (VTL §1192(3)), Driving While Ability Impaired (VTL §1192(4) (a)) and Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL 511(2)(a)(iv)), based upon the credible testimony, the Court finds that defendant’s guilt has not been established beyond a reasonable doubt as a matter of law. First, PO Yoe testified that the bottle of Bailey’s liquor recovered from defendant’s jacket pocket was closed at the time it was recovered. As such, there is insufficient evidence to establish that defendant was in possession of an open container of alcohol in his vehicle when he was driving it. Second, although the officers testified that the defendant was driving at an excessive speed, had bloodshot, watery eyes and an odor of marijuana on him, such observations alone are insufficient to establish beyond a reasonable doubt that defendant was driving while intoxicated or impaired. There was no testimony that the defendant’s driving was erratic or that he was suffering from any coordination or motor skill impairment such that his driving abilities were compromised. Cf. People v. Milo, 300 AD2d 680 (2d Dept 2002); People v. Lundell, 24 AD3d 569 (2d Dept 2005); People v. Barger, 78 AD3d 1191 (2d Dept 2010); People v. Kahn, 160 Misc 2d 594 (Dist Ct Nassau Cty 1994). Moreover, defendant’s statement that he had smoked marijuana earlier in the day, without any particular reference as to the time of day, is insufficient to establish that he was under the influence of marijuana at the time of his arrest. Lastly, the Court finds that the People’s evidence was not legally sufficient to establish defendant’s guilt beyond a reasonable doubt of the offense of aggravated unlicensed operation of a vehicle in the second degree. Specifically, the People failed to prove that the defendant knew or had reason to know that his license was suspended. The People submitted the defendant’s certified NYS Driver Abstract which indicates that the defendant had six scofflaw suspensions on his license on four different dates for failure to answer, appear or pay a fine. However, the People’s witness, Mr. Cumberbatch, did not have the requisite personal knowledge of the procedures utilized by the Albany DMV office which handled the mailing of suspension notifications. See People v. Francis, 114 AD2d 699 (2d Dept 2014); People v. Outram, 22 Misc 3d 131(A) (App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2009); cf. People v. Flores, 62 Misc 3d 46 (App Term, 2d Dept, 9th & 10th Jud Dists 2018). Moreover, for the suspensions issued on November 6, 2018, July 4, 2018 and May 22, 2018 the suspension notices, which were part of the defendant’s driver abstract entered into evidence as People’s Exhibit “9″, were mailed to 4938 Cason Cove Drive, Orlando Florida 32811 although the defendant’s address listed on the abstract was 8 Washington Avenue, Apt. 9, Hastings on Hudson, New York 10706. There is no indication in the defendants driver abstract or from Mr. Cumberbatch’s testimony as to whether the Florida address was a prior address that the NYS DMV had on file for the defendant and if so, for what time period. As such, the People failed to present sufficient proof regarding the standard practices and procedure of the Albany DMV office that were designed to ensure that the suspension notices were properly addressed and mailed, did not establish that the suspension orders were mailed to the defendant and thus, failed to prove that the defendant knew or had reason to know that his license had been suspended. Based upon the testimony and evidence presented, the Court finds the defendant not guilty of Possession of Alcohol in a Motor Vehicle (VTL §1227(1)), Driving While Intoxicated (VTL §1192(3)), Driving While Ability Impaired (VTL §1192(4) (a)) and Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL §511(2)(a)(iv)). With respect to the charges of Excessive Speeding (VTL §1180(a)) and Failure to Exhibit Driver’s License (VTL §507(2)) the Court finds, based upon the credible evidence, the defendant’s guilt was established beyond a reasonable doubt. Moreover, the officers testified credibly that the defendant was driving at an excessive speed on a public street which had a maximum speed limit of 30 mph and that defendant was unable to produce his driver’s license upon request by the officers. The Court, therefore, finds the defendant guilty on the charges of Excessive Speeding (VTL §1180(a)) and Failure to Exhibit Driver’s License (VTL §507(2)). The defendant is directed to appear on March 16, 2020 at 9:30 am for further proceedings in this matter. Dated: February 21, 2020
