PEOPLE v. SIKORSKI (2001)

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered May 26, 1998, convicting defendant, after nonjury trial, of aggravated unlicensed operation of a motor vehicle in the first degree, and sentencing defendant to a term of six months incarceration and a $1000 fine, unanimously modified, on the law, to the extent of reducing defendant's conviction of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3][a][ii] ) to aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511[2][a][iv] ), vacating the sentence imposed, remitting the matter to Supreme Court for resentencing, and otherwise affirmed.

 Contrary to the conclusion reached by Supreme Court, the People failed to establish that defendant committed the crime of aggravated unlicensed operation of a motor vehicle in the first degree, which requires proof that defendant operated a vehicle with 10 or more license suspensions in effect (Vehicle and Traffic Law § 511[3][a][ii] ).   In this regard, the abstract of defendant's driving record that was introduced into evidence by the People was not properly certified as required by CPLR 4540(b) (see, People v. Smith, 258 A.D.2d 245, 697 N.Y.S.2d 783, lv. denied 94 N.Y.2d 829, 702 N.Y.S.2d 600, 724 N.E.2d 392).

The evidence was, however, sufficient to sustain a conviction for the lesser included offense of aggravated unlicensed operation of a motor vehicle in the second degree, which requires proof that defendant had three or more suspensions in effect (see, Vehicle and Traffic Law § 511[2][a][iv] ).   We note that this charge was supported by the admission of eight notices of suspension and defendant has not challenged the admissibility of this evidence on appeal.