PEOPLE v. SCHERBNER (2009)

Defendant is charged with violation of § 319(1) of the Vehicle & Traffic Law while driving an automobile allegedly owned by someone else, traveling Northbound on Route 106 in the Village of Muttontown.

Defendant moves to dismiss the charge on the ground that the Simplified Traffic Information (i.e. traffic ticket) and Supporting Deposition, taken together, do not show that defendant had knowledge that the owner of the vehicle that defendant was driving did not have insurance”.   Proof of knowledge that the vehicle being driven is uninsured is required for a conviction under § 319.  VTL § 319(2).  People v. Weinert, 178 Misc.2d 675, 678, 683 N.Y.S.2d 690;  People v. Hakimi-Fard, 137 Misc.2d 116, 119, 519 N.Y.S.2d 766;  People v. Reyes, 84 Misc.2d 208, 375 N.Y.S.2d 794.

There does not appear to be authority passing on whether the charging instruments must contain a specific allegation of knowledge, i.e. at this nascent stage of the case.   Defendant relies on the elements of the offense contained in the statute itself, as well as what she contends are the “interests of justice”.

 The People contend that proof of lack of knowledge is an affirmative defense;  so that such knowledge need not be alleged in the simplified information and supporting deposition.   However, guilty knowledge is an element of the offense itself;  and “the burden of proving both lack of insurance and knowledge that the vehicle is uninsured if upon the People”.   Simmons, 90 Misc.2d at 144, 394 N.Y.S.2d 358.   Accord People v. Pender, 100 Misc.2d 846, 420 N.Y.S.2d 62.   As explained in Rose, New York Vehicle & Traffic Law § 19:4 at 205:  “the Legislature has not required that a driver inquire of an owner concerning insurance, nor has it required a driver to ask for a an insurance card before operation the vehicle”.   See, e.g., People v. Simmons, 90 Misc.2d 143, 144, 394 N.Y.S.2d 358.   Since the People must prove each of the elements of the offense, they must allege each element;  and, if they have not done so, the charge is insufficiently lodged.

 The People further respond that, in any event, they have met any pleading burden they may have because the failure to produce an insurance identification card is presumptive evidence of a violation, citing VTL § 319(3).   However, the presumption exists applies only where the driver is the owner of the vehicle.  People v. Abney, 176 A.D.2d 1193, 576 N.Y.S.2d 690 (4th Dept.), app. den., 79 N.Y.2d 823, 580 N.Y.S.2d 204, 588 N.E.2d 102;  People v. Chin, 96 Misc.2d 627, 409 N.Y.S.2d 500.   Moreover, even for an owner, a mere failure to produce such a card is generally not enough alone to prove the element of knowledge required for a conviction under the statute;  rather, it is only presumptive evidence which requires the defendant to come forward with contrary evidence (even if only testimony) countering the presumption.  Pender, 100 Misc.2d 846, 420 N.Y.S.2d 62 (the presumption “goes only to the element of lack of insurance and not to the knowledge” element);  Simmons, 90 Misc.2d at 144, 394 N.Y.S.2d 358.   The trier of fact will determine what weight to give to the evidence (including the credibility of the testimony) and ultimately whether the People have sufficiently met their burden of proof beyond a reasonable doubt.

Even if the People make out a prima facie case of knowledge, the defendant may be able prove that she did not know that the automobile was uninsured when she was driving it.   For example, in Matter of Frankel v. Jackson, 249 A.D.2d 475, 671 N.Y.S.2d 308 (2nd Dept.), the testimony of the renter of rental vehicle was sufficient in administrative proceeding to do so.   But, the defendant need not do so unless and until the People have presented a prima facie case;  and, in any event, such proof is a matter for trial, not a motion to dismiss for insufficiency of the charging instruments themselves.

 Although the simplified information and supporting deposition need not be detailed, they must state all of the elements of the charge in a manner sufficient to state a prima facie case.  People v. Greenfield, 9 Misc.3d 1113(A), 808 N.Y.S.2d 919, 2005 Slip Op. 51518(U), 2005 N.Y. Misc. LEXIS 2061;  People v. Worrell, 10 Misc.3d 1063(A), 814 N.Y.S.2d 564, 2005 Slip Op. 52111(U), 2005 N.Y. Misc. LEXIS 2911.   See also People v. Palmer, 21 Misc.3d 1136(A), 2008 N.Y. Slip Op. 52399(U), 2008 WL 5046417, 2008 N.Y. Misc. LEXIS 7483.   The combination of the simplified information and supporting deposition in a case can suffice to do so.  People v. Inserra, 4 N.Y.3d 30, 32, 790 N.Y.S.2d 72, 823 N.E.2d 437;  People v. Key, 45 N.Y.2d 111, 115-16, 408 N.Y.S.2d 16, 379 N.E.2d 1147;  Greenfield, 9 Misc.3d 1113(A), 808 N.Y.S.2d 919, 2005 Slip Op. 51518(U), 2005 N.Y. Misc. LEXIS 2061.

 Here, the simplified information does not state any details of the circumstances involved or the alleged offense, but rather merely lists the statute and says “uninsured”.   The supporting deposition states only the same thing, and that the police officer had “reasonable cause to believe that the defendant committed the offense” because she was “operating” the automobile at the time and place specified in the ticket.   That is not sufficient to establish a prima facie that, as required by the statute.

Rather, when a vehicle is stopped for this alleged offense, the simplified information and supporting deposition should show that there was a reasonable basis for the officer to believe that a violation of law (not necessarily of § 319 itself) had been committed, and then, after stopping the driver, that a § 319 violation itself (either together with another violation or alone) occurred.  U.S. v. Jenkins, 324 F.Supp.2d 504, 508, aff'd, 452 F.3d 207, cert. den., 549 U.S. 1008, 127 S.Ct. 528, 166 L.Ed.2d 392 (“probable cause and reasonable suspicion to stop and arrest a driver of a vehicle exist when an officer observes a traffic offense-however minor' ”);  U.S. v. Scopo, 19 F.3d 777, 782.   That is especially so when, as here, the alleged violation was committed as to a moving vehicle whose registration and inspection stickers are not readily visible and for which there is generally no other readily apparent basis to suspect that the vehicle is uninsured.

Proof of those predicate factors can and should be shown in the supporting deposition.   For example, in a VTL § 319 case, it can state:  [a] why the police officer believed there was a reasonable ground to stop the vehicle, [b] how the officer determined whether the driver was the owner of the vehicle (e.g. by reviewing the registration), which may create the § 319(2) presumption;  and [c] if no presumption is created, that the officer inquired of the driver or otherwise arrived at a good faith belief (possibly even based on disbelief of what the driver says) that the driver knew that the vehicle was uninsured.   Failing such explanatory information, however, it is not possible for the combination of the simplified information and supporting deposition to make out a prima facie case of a violation of this particular section of the Vehicle & Traffic Law.

The simplified information and supporting deposition at bar fail to satisfy this criteria.   Hence the motion is granted, and the case is dismissed.

So Ordered.

MARTIN I. KAMINSKY, J.