The Appellate Term, Second Department, reversed a defendant's conviction for Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree in People v. Outram (App. Term. 2d Dept. 1/30/2009). The court held that the People had introduced insufficient evidence to establish that the defendant knew that his driver's license had been suspended:
mailed to defendant, so that they could then invoke the presumption
that the orders were received by defendant (see e.g. Residential Holding Corp. v Scottsdale Ins. Co.,
286 AD2d 679 ). However, the testimony on behalf of the People by
a New York City employee of the DMV, demonstrated that said employee
had no personal knowledge whatsoever of the procedures of the Albany
DMV office which handled the mailing of suspension orders.
Consequently, the People failed to provide sufficient proof regarding
the DMV's standard office practice or procedure designed to ensure that
the suspension orders were properly addressed and mailed (see Residential Holding Corp.
at 680), did not establish that the suspension orders were mailed to
defendant, and failed to prove that defendant knew, or had reason to
know, that his license was suspended, as required by Vehicle and
Traffic Law § 511(1)(a).
From this short description, it looks like the prosecutor was caught off-guard by an unprepared witness. Lesson learned? An attorney should meet with all witnesses, even so-called "professional" ones like DMV representatives, and go over the questions that will be asked. There is nothing unethical about "witness preparation," provided the attorney does not script or coerce the witness. (LC)