Defendant Seeks Reversal of Felony Aggravated Unlicensed Operation Conviction

Driving with a suspended license can be an extremely serious offense in New York with Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree being a Felony in New York.  A recent decision decided toward the end of April, in the Appellate Division, Third Department, demonstrates why these cases must be treated very seriously and handled by experienced criminal defense lawyers.  Originally, the defendant was convicted of aggravated unlicensed operation of a motor vehicle in the first degree. The defendant’s attorney filed a pre-trial motion to suppress certain incriminating evidence, which the lower court summarily denied without a hearing because the motion was not supported by sworn allegations of fact. When the defendant appealed this denial, the higher court considered the evidence but ultimately decided the trial court’s ruling should stand.

Facts of the Case

According to the opinion, the defendant was driving one night when he made two turns without using a turn signal. A patrolling officer pulled him over for a routine traffic stop, at which point the officer learned that the defendant was operating the motor vehicle without a license.

The defendant’s attorney promptly filed a motion to suppress evidence of the conversation between his client and the officer during the traffic stop. The court denied that motion and the defendant pleaded guilty to the crime, and received a sentence of 1 to 3 years in prison.

The defendant then appealed the lower court’s ruling, hoping the appellate division would overturn the denial of his motion to suppress.

The Decision

On appeal, the defendant took issue with the lower court’s ruling in that it declined to give him a hearing on the motion to suppress. Oftentimes, when faced with a motion to suppress, a trial court will order a hearing during which police witnesses will testify and be cross-examined about their recovery of evidence or the taking of statements. Here, though, the court denied the motion without even giving the defendant a chance to argue his case before the court.

The higher court acknowledged that the defendant did not have the opportunity to have a hearing on the motion to suppress, but it said this was appropriate given the deficiencies in his motion. To hold a hearing on a motion to suppress, there must be sworn allegations of fact in the motion – that is, someone must sign a sworn statements regarding the events that happened during the arrest and those facts must create a factual dispute that needs to be resolved by sworn testimony.  Here, the police stated that they stopped the defendant for failing to use his turn signal.  If the defendant had given an affidavit that he had used his turn signal that affidavit would have created a factual dispute which could only be resolved by an evidentiary hearing with sworn testimony from the police.

Here, there were no sworn allegations of fact in the defendant’s motion to suppress. The law is clear, said the court, that if a motion to suppress does not contain this important element, the court is entitled to deny the motion without holding a hearing.

Thus, given this reality, the court denied the defendant’s motion and kept the original ruling in place.

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