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Appellate Term, First Department: November 27 & 30, 2020

Appellate Term, First Department: November 27 & 30, 2020

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The following decisions were decided on: November 27, 2020

By: Cooper, J.P., Higgitt, McShan JJ. 17-077. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ROBERT NEAL, def-app — Judgment of conviction (Ann E. Scherzer, J.), rendered August 16, 2016, reversed on the law, the conviction vacated, the count of the information charging aggravated unlicensed operation of a motor vehicle in the second degree dismissed, and the matter remanded to Criminal Court for further proceedings on the remaining count of the instrument. Since defendant did not waive prosecution by information, the facial sufficiency of the accusatory instrument must be evaluated under the standards governing an information (see People v. Hatton, 26 NY3d 364, 368 [2015]). So viewed, the information charging aggravated unlicensed operation of a motor vehicle in the second degree (see Vehicle and Traffic Law §511[2][a][iv]) was jurisdictionally defective, since the factual allegations failed to “establish…every element of the offense” (CPL 100.40[1][c]). Absent any allegations that the Department of Motor Vehicles mailed either a suspension or revocation order to defendant’s last known address, or proof of such mailing, the information failed to establish the element of the offense that defendant was driving “while knowing or having reason to know” that his license was suspended or revoked (Vehicle and Traffic Law §511[1][a]; see People v. Park, 66 Misc 3d 152[A], 2020 NY Slip Op 50344[U][App Term, 1st Dept 2020]; People v. Barabondeka, 61 Misc 3d 126[A], 2018 NY Slip Op 51307[U][App Term, 1st Dept 2018], lv denied 32 NY3d 1109 [2018]; People v. Thompson, 52 Misc 3d 145[A], 2016 NY Slip Op 51287[U][App Term, 1st Dept 2016], lv denied 28 NY3d 1076 [2016]). We decline to dismiss the accusatory instrument, since it cannot be said that no penological purpose would be served by remanding for further proceedings on the remaining count (see People v. Conceicao, 26 NY3d 375, 385 n [2015]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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