COMMONWEALTH v. KNIGHT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI), third offense. He limits his appeal to arguing only that there was not a proper basis to find or to rely upon one of the prior offenses -- an offense that occurred in New York State. The defendant challenges (1) the admissibility of the documentary evidence presented to prove the New York offense, and (2) the sufficiency of the evidence as to the New York offense. He contends that a conviction of OUI, second offense, only was warranted. We affirm.

Background. On January 8, 2019, the defendant, Brian M. Knight, was tried for OUI, third offense, in violation of G. L. c. 90, § 24 (1) (a) (1). The proceeding was bifurcated. In the first phase, a jury convicted the defendant of operating while under the influence. After the verdict was delivered, a jury-waived trial commenced on the subsequent-offense element of the OUI charge.

Section 24 (1) (a) (1), fifth par., establishes a penalty for a defendant who has twice been previously convicted “of a like offense” to OUI “by a court of the commonwealth, or any other jurisdiction.” At the start of the jury-waived trial, the defendant stipulated that he had received a continuance without a finding on an OUI charge in 2003 in Massachusetts, which qualifies as a prior offense under the statute. See Burke v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 90. Mass. App. Ct. 203, 207-208 (2016). Consequently, the prosecution needed to show only one additional conviction.

To do so, the prosecution offered evidence that the defendant had pleaded guilty to driving while impaired in New York in 2015. The prosecution adduced three documents to show this: (1) a certified copy of a docket sheet -- a 2015 “Local Court Criminal Disposition Report” from a court in Salina, New York -- for a matter involving “Brian Knight” (docket sheet); (2) a certified copy of a “disposition letter” sent by a prosecutor to the New York court concerning a proposed plea agreement with “Brian Knight,” dated March 12, 2015 (letter); and (3) a certified copy of a plea affidavit signed by “Brian M. Knight,” dated March 25, 2015 (affidavit). The prosecution did not offer any other evidence concerning the prior offense. The judge found the defendant guilty of OUI, third offense. This appeal followed.

Discussion. 1. Admissibility of letter and affidavit. First, the defendant argues that the letter and the affidavit both were improperly admitted as evidence under the business records exception to the hearsay rule. He does not challenge the admission of the docket sheet. On appeal, the Commonwealth has abandoned the business records theory, and instead argues that the affidavit was admissible as an opposing party statement, and the letter as a court record under G. L. c. 233, § 69. We may affirm an evidentiary ruling on “grounds different from those” relied upon below, if supported by the record. See Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, 503 n.7 (1996).

Both the affidavit and the letter were admissible under G. L. c. 233, § 69. The statute provides that “records and judicial proceedings of a court of another state ․ shall be admissible in evidence ․ if authenticated by the attestation of the clerk or other officer who has charge of the records of such court under its seal.” G. L. c. 233, § 69. Here both documents bear, on every page, the seal of the Justice Court of the Town of Salina, New York, and the signature of its clerk. Each signature is dated May 9, 2016. See Portland Maine Pub. Co. v. Eastern Tractors, Co. 289 Mass. 13, 15-16 (1935) (under § 69, court record “certified” by signature of clerk and seal of court “is admitted ․ without further proof” [citation omitted] ).²

2. Sufficiency of evidence of New York conviction. Next, the defendant argues that the three records were insufficient to prove that he had been convicted of violating New York Vehicle and Traffic Law (VTL) § 1192.1 in 2015. The argument has two parts: first, that the records do not establish that the defendant is the same “Brian Knight” that was the subject of the New York proceeding; and second, that even if the records established identity, they did not prove that the defendant was actually convicted under VTL § 1192.1 of driving while alcohol impaired (DWAI). We do not agree.

Under the familiar standard of Commonwealth v. Latimore, we view “the evidence in the light most favorable to the prosecution,” and ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (quotation and citation omitted). 378 Mass. 671, 677 (1979). “In such cases, inferences [drawn by the fact finder] need not be necessary, only reasonable and possible.” Corson v. Commonwealth, 428 Mass. 193, 197 (1998).

The evidence was sufficient to prove that the defendant here was the same Brian Knight who was the subject of the New York records. The defendant asserts that the records contain no more identifying information than the name “Brian Knight.” They lack, for example, an address or driver's license number. Without more, the defendant suggests the Commonwealth needed to call as a witness someone involved in the New York proceeding to demonstrate that he was the same Brian Knight who had been involved in New York. But while the defendant is correct that “[m]ere identity of a name is not sufficient to indicate an identity of person” (citation omitted), Commonwealth v. Maloney, 447 Mass. 577, 582 (2006), here there was more; the date of birth on both the docket sheet and the defendant's New York affidavit matched the date of birth on the defendant's Massachusetts registry of motor vehicles record, which was also admitted. This was sufficient to establish identity. See id. at 588; Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 546 (2008).³

The New York records also were sufficient to prove that the defendant was convicted of DWAI in violation of VTL § 1192.1. The gist of the defendant's argument to the contrary is that the docket sheet is indecipherable standing alone, and that although the letter and the affidavit anticipate that the defendant was going to plead guilty to DWAI, they do not show that he actually did so. Taking all the New York evidence together, however, see Commonwealth v. Ayala, 481 Mass. 46, 53 (2018), a fact finder reasonably could infer from the docket sheet that the defendant did in fact plead as contemplated by the letter and affidavit.

It is true that the docket sheet is difficult to decipher standing alone, as it mainly displays a table with various codes and abbreviations. The docket sheet need not be considered in isolation, however, as the letter and the affidavit provide important context. Both the letter and the affidavit discuss a negotiated plea agreement that would have the defendant plead guilty under VTL § 1192.1, DWAI. Moreover, the letter states that the plea agreement was “strictly contingent” on the court imposing a $500 fine on the defendant, and the affidavit also acknowledges that pleading guilty would entail a $500 fine and “up to a $260 mandatory state surcharge.”

Turning now to the docket sheet, it contains information that matches the information of the letter and affidavit. Below the defendant's name and date of birth there is an entry displaying “VTL-1192,” followed by “-01,” and then “DWAI ALCOHOL.” Further below is a row displaying “FINE: 500,” “STAT: PAID,” “SURCHARGE: 260,” and “STAT: PAID.” And this information appears under the record's heading: “Local Court Criminal Disposition Report” (emphasis added). Taking this evidence together, a fact finder could reasonably infer that the docket sheet shows that the defendant pleaded guilty to DWAI and thereafter “paid” the accompanying $500 fine and $260 surcharge, as anticipated and specifically described in the letter and affidavit.

Finally, the defendant contends that even if the foregoing arguments do not prevail, we still should overturn his conviction because the fact finder lacked a basis for determining that the New York crime of DWAI constituted a “like offense” to OUI in Massachusetts. The defendant suggests that this is a question of fact, and emphasizes that the Commonwealth presented no evidence regarding the elements of VTL § 1192.1, DWAI. The question is one of law, however, not fact. Under G. L. c. 90, § 24 (1) (a) (1), two offenses are “like” “where the subsequent offense constitutes the same conduct as the earlier.” Commonwealth v. Valiton, 432 Mass. 647, 655 (2000), citing Commonwealth v. Corbett, 422 Mass. 391, 396 (1996). The elements of VTL § 1192.1 are established by New York law, and subject to judicial notice. See G. L. c. 233, § 70; Mass. G. Evid. § 202(a)(2) (2019). VTL § 1192.1 states: “No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.” General Laws c. 90, § 24 (1) (a) (1), first par., criminalizes the operation on a public way of a motor vehicle “while under the influence of intoxicating liquor.”

As the above language indicates, New York VTL § 1192.1 prohibits essentially the same conduct as the Massachusetts OUI law -- operating a motor vehicle while impaired by alcohol. See Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 728 (2016); People v. Cruz, 48 N.Y.2d 419, 426-427 (1979). Indeed, we have previously held that the New York offense of DWAI is “substantially similar” to OUI in Massachusetts for purposes of license revocation, under subsections of § 24 not at issue here, as both statutes penalize drivers whose “ability to operate safely has been affected even slightly by alcohol.” Callahan v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 196, 200 (2016). In light of the language of VTL § 1192.1, and drawing on the reasoning of Callahan, we conclude that the New York offense of DWAI is a like offense to Massachusetts OUI for purposes of the subsequent offense penalty.

Judgment affirmed.

FOOTNOTES

2.   Deciding this issue as we do, we need not address the Commonwealth's argument that the affidavit was admissible as an opposing party statement.

3.   Notably, G. L. c. 90, § 24 (4), explicitly provides that “the commonwealth shall not be required to introduce ․ live witness testimony to establish the validity of such prior convictions.” (This language is actually codified in § 24 [1] [c] [4], because of what the Supreme Judicial Court has called a “clerical error.” See Maloney, 477 Mass. at 582 n.8, 584 [2006].)