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Offender was previously convicted

The first count of an indictment filed July 16, 1998 charges defendant with DWI in violation of Vehicle and Traffic Law § 1192 (3). The special information filed in connection with the indictment accuses defendant of having been previously convicted of DWI in Macedon Town Court, Wayne County, on February 4, 1997 and in St. Lawrence County on February 23, 1998. A New York DWI Lawyer said that, by virtue of the accusation that defendant had been convicted of DWI twice within the preceding 10 years, the first count of the indictment charged defendant with DWI as a class D felony.

A Defense Lawyer said that, defendant moved for dismissal or reduction of the first count of the indictment. In response to the motion, the People produced the Grand Jury minutes and the exhibits used to establish defendant’s two prior convictions before the Grand Jury. Grand Jury exhibit No. 1, a certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, certifies that defendant was convicted of DWI in that court on February 4, 1997. Grand Jury exhibit No. 2, a DMV abstract, indicates that defendant was convicted of DWI in St. Lawrence County on February 23, 1998. More precisely, the DMV abstract identifies the conviction as “DRVG INTOX PI ACC”. There is no mention of the section defendant was convicted of violating or the court where the conviction was entered. The seal of the State of New York is printed on each page of the abstract, and each page also contains the following statement: “This is to certify that this document is a true and complete copy of an electronic record on file in the New York State Department of Motor Vehicles, Albany, New York.”

A Criminal Lawyer said that, the Supreme Court granted defendant’s motion in part by reducing the DWI charge under the first count of the indictment from a class D felony. The court concluded that the certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, was legally sufficient to establish that defendant had been convicted of DWI once within the preceding 10 years. The court further concluded, however, that the evidence before the Grand Jury was not legally sufficient to establish that defendant was convicted of DWI twice within the preceding 10 years because the DMV abstract did not constitute competent and admissible evidence of the alleged St. Lawrence County conviction. More specifically, the court concluded that the certification on the abstract did not qualify as certification of a business record or a public record. The People appeal from the order insofar as it reduces the severity of the charge under the first count of the indictment.

The issues in this case are whether an abstract of driving record of the Department of Motor Vehicles (DMV abstract) is admissible evidence of a prior conviction of operating a motor vehicle while under the influence of alcohol or drugs (DWI); and, if so, whether the DMV abstract in this case was properly authenticated.

The Court in deciding the case cited the provisions of CPL 190.30 (1) provides: “Except as otherwise provided in this section, the provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings.” In addition, CPL 190.65 (1) provides that an indictment must be based upon “legally sufficient” and “competent and admissible” evidence before the Grand Jury. Thus, apart from the specific exceptions set forth in CPL 190.30 (2) through (7), “general criminal trial court evidentiary rules normally apply to Grand Jury proceedings”.
Those rules include CPL 60.60 (1), which provides that a certificate of conviction “constitutes presumptive evidence of the facts stated in such certificate.” The court therefore properly determined that Grand Jury exhibit No. 1 was both “legally sufficient” and “competent and admissible” evidence establishing defendant’s conviction of DWI in Macedon Town Court and supporting the charge of DWI as a class E felony.

In seeking to establish before the Grand Jury defendant’s alleged prior DWI conviction in St. Lawrence County, the People were permitted but not required to present a certificate of conviction. As an alternative to the rule set forth in CPL 60.60, the People were entitled to resort to “the rules of evidence applicable to civil cases” (CPL 60.10). The People concede that the DMV abstract constitutes hearsay and that it is not admissible as a business record pursuant to CPLR 4518 (c). They contend, however, that it qualifies for admission under both the statutory hearsay exception for records made by public officers and the common-law hearsay exception for public documents. There is no appellate authority squarely addressing the admissibility of DMV abstracts. The reported decisions addressing that issue have held that they qualify for admission over a hearsay objection based upon the statutory exception, the common-law public document exception.

In our view, defendant’s DMV abstract falls squarely within the common-law public document exception: “When a public officer is required or authorized, by statute or nature of the duty of the office, to keep records or to make reports of acts or transactions occurring in the course of the official duty, the records or reports so made by or under the supervision of the public officer are admissible in evidence”. The Commissioner of the Department of Motor Vehicles, a public officer, is required to retain on file certificates of conviction relating to Vehicle and Traffic Law offenses for a minimum of four years.

Thus, because the Commissioner is required by statute to keep a record of defendant’s convictions and to make an abstract of driving record enumerating those convictions, defendant’s DMV abstract qualifies for admission under the common-law public document exception to the hearsay rule. It is not necessary to decide whether it also qualifies for admission under the much narrower statutory exception. The inquiry into the admissibility of the DMV abstract, however, does not end with the determination that it is admissible over a hearsay objection. Following that determination the question remains whether the document has been properly authenticated. Authentication of official records is governed by CPLR 4540. Subdivision (a) of CPLR 4540 provides in pertinent part that “an official publication, or a copy attested as correct by an officer having legal custody of an official record of any state or any of its offices or public bodies is prima facie evidence of such record.” We reject the People’s contention that the DMV abstract is not a copy but an original document that requires no certification of attestation. The certification at issue states that it is certification of a copy. As such, it is subject to the requirements of CPLR 4540 (b), which provides in pertinent part: “Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed”.

The purpose of the certification requirement is to ensure the reliability of copies of official records in the absence of testimony from the custodians of those records. Affixing an official seal to the attesting official’s signature “will make the copy entirely self-proving. Reliability can be assumed because of the difficulty of forging seals”. Further, the attestation of an official having custody of an official record “is the assurance given by the certifier that the copy submitted is accurate and genuine as compared to the original”.

In the instant case, defendant contends that the attestation of the Commissioner and the seal of the State of New York on his DMV abstract were preprinted on blank forms, prior to the electronic transfer of information regarding his driving record to the forms. The People, the proponents of the abstract, do not dispute that the abstract was produced in the manner described by defendant. Neither, however, do they concede the point. In our view no such concession is necessary because an examination of the documents themselves confirms defendant’s position. The seal of the State of New York is not embossed on the document in a manner resisting forgery; it is printed on the background of each page. Further, it is clear that the data regarding defendant’s driving record was placed on the document after the seal was affixed. Similarly, the certification is in the identical location on each page of the DMV abstract and appears to have been printed prior to the transfer of data regarding defendant’s driving record. As a result, the document provides no assurances that any comparison has been made between the copy and the original record, and there is no basis for the assertion of the Commissioner of the Department of Motor Vehicles that it is “a true and complete copy of an electronic record on file” in the Department of Motor Vehicles.

Accordingly, the court held that because “strict compliance with the rules requiring authentication” of public documents was lacking, the court properly determined that the DMV abstract did not constitute competent and admissible evidence of the alleged St. Lawrence County DWI conviction. Accordingly, the order reducing the severity of the DWI charge under the first count of the indictment should be affirmed.

If you are involved in as similar case don’t hesitate to ask for the help of a New York DWI Defense Attorney and/or New York Criminal Attorney at Stephen Bilkis and Associates.

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