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Fiandach & Fiandach (Rochester NY)

585.244.8910

Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
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Proving Predicates

February 13, 2008

How is a prior misdemeanor conviction for DWI to be proved before the Grand Jury?  Incredibly enough, this is perhaps the thorniest issue in the pleading of alcohol related operating offenses.

Examination of this issue commences with CPL '190.65.  This section provides that for an indictment to issue,  the evidence before the Grand Jury must be "legally sufficient to establish that such person committed such offense."

Legally sufficient evidence, in turn, is defined by CPL '70.10 as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. . . ."

As you review this statute, note the use of the word "competent."  The term "competent evidence" is relevant evidence that is admissible in a particular action.  Relevant evidence is that which is not subject to the operation of any exclusionary rule (People v. Brewster, (1984, 2nd Dept) 100 AD2d 134, 136 ‑ 137, 473 NYS2d 984).  Thus, when establishing a prior conviction, "competent" evidence is, by definition, admissible evidence.

Of some confusion is CPL '70.10(2).  In defining "reasonable cause," the closing line provides that "[e]xcept as otherwise provided in this chapter . . . apparently reliable evidence may include or consist of hearsay."


The unfortunate use of this term has led many to believe that hearsay is admissible in establishing legal sufficiency.  Such an analysis, however, is fatally flawed.  Legal sufficiency is a requirement separate and distinct from reasonable cause.  See, People v. Jennings, (1986) 69 NY2d 103, 512 NYS2d 652.      While, in the usual case, the prosecutor will have little difficulty establishing "reasonable cause"  by competent, i.e., admissible, evidence that a motorist has violated Vehicle and Traffic Law '1192(2), '1192(3) or '1192(4), establishing a felony is more difficult.  Correctly setting forth that the motorist has committed a felony requires a showing that the defendant has been convicted of an Article 21 crime within the preceding ten years.

A driving abstract, of course, will fail to meet the statutory goal.  An abstract is hearsay.  CPL '190.30, largely adopts the rules of evidence set out in CPL '60.  While it carves out limited exceptions, none of these provisions will permit an abstract to be used in this fashion (See, Fiandach, New York Driving While Intoxicated, '11:8, pp 406-407).

In proving the predicate, the diligent prosecutor is ushered to the floor of the Grand Jury by CPL '60.60 with a certificate of conviction.  This proviso, however, is a two-pronged affair.  Subdivision (1) merely empowers such a certificate to act as "presumptive evidence of the facts stated in such certificate" and therefore will only suffice to prove that an individual bearing the defendant's name was previously convicted in a specific court.

Ergo, the second prong, CPL '60.60(2).


"A report of a public servant charged with the custody of official fingerprint records which contains a certification that the fingerprints of a designated person who has previously been convicted of an offense are identical with those of a defendant in a criminal action, constitutes presumptive evidence of the fact that such defendant has previously been convicted of such offense."

In People v. Van Buren, (1992, 4th Dept) 187 AD2d 925, 590 NYS2d 362, lv granted, 81 NY2d 795, 594 NYS2d 742, 610 NE2d 415), the proof consisted solely of a certificate of conviction and testimony of the arresting officer that defendant admitted a "prior alcohol conviction."  Upon the defendant's motion, the Genesee County Court (Morton, J.) dismissed the indictment with leave to re-present.  The People thereafter appealed.

While the Fourth Department found the presentation to be sufficient, we questioned the holding (Fiandach, New York Driving While Intoxicated, Lawyers Cooperative Publishing, 1993 cumulative supplement, '11:8, p. 72-73) primarily since it seemed to ignore the dispositive significance of CPL '60.50(2).

Apparently we were correct; the Court of Appeals has overruled Van Buren.  In a memorandum opinion, (- NY2d -, - NYS2d -, 1993 WL 523536) the Court held:


"That a person named Robert L. Van Buren was convicted of driving while intoxicated within the preceding ten year period even in the same County did not constitute prima facie proof that defendant was the person previously convicted of DWI within the last ten years.  The Certificate of Conviction standing alone, without some further, connecting evidence tending to show that defendant was the same Robert L. Van Buren named in the certificate, was insufficient 'to establish every element of the offense charged.'"

What then is required?  The short answer is a CPL '60.60(2) certificate setting forth "that the fingerprints of a designated person who has previously been convicted of an offense are identical with those of a defendant in a criminal action."  In the wake of Van Buren, a prosecutor would proceed at great risk were he or she to produce something less.

More troublesome is the question of application.  Since the Court of Appeals found the Van Buren presentation devoid of "connecting evidence tending to show that defendant was the same [person] named in the certificate," will an admission of the prior conviction, or other corroborating evidence such as the defendant's date of birth, meet the mandated burden?

Key to resolving this crucial issue is an in-depth analysis of CPL '190.65(1)(a). 

"Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent * * *."

The standard to be applied upon a motion to dismiss, legal sufficiency, presents a question of law and therefore represents the single issue to be decided upon a motion to dismiss (People v. Jennings, supra.)


Subdivision (a), of course, makes no mention of "competent evidence" and for good reason; CPL '70.10(1) describes "legally sufficient evidence" as:

". . . competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent."

Therefore, when a Court undertakes its statutorily empowered examination of an indictment, competency, by virtue of this provision, is brought to the forefront.  An indictment can stand only when it is supported by "competent evidence which, if accepted as true, would establish every element of the crime charged and the defendant's commission of it."  Irrespective of whether evidence is logically connected or tends to prove a fact at issue, the existence of a rule of law barring the categorical use of such evidence will render it incompetent (People v. Brewster, supra; Richardson, Evidence [Prince, 10th ed], '4; 1 Bender, NY Evidence, '1).

Admissions, of course, must be corroborated (CPL '60.50).  Accordingly, the logic becomes dangerously circular if an admission by the defendant is permitted to prove that the individual named in the certificate and the defendant are one and the same. To corroborate the admission, one must first make the assumption that Van Buren does not allow; that the individual named in the certificate is the individual who presently stands charged.


What of a driver's license or DMV abstract?  May the necessary connection be made through such documentation?  Again, the answer should be no.  Reduced to their essentials, these documents fail to contain the required certification to warrant its admission.  In People v. Zapatero (- Misc2d ‑, - NYS2d ‑, 1993 WL 479693), the New York City Criminal Court, in dealing with this identical issue, observed:

"[The] NYSID sheet, even if formally admitted into evidence, fails to meet the requisite test of 'competent and admissible evidence' because it was not certified (see, CPL '190.65[1] and '190.30[2])."



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