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People v. Abney

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 4, 1991
176 A.D.2d 1193 (N.Y. App. Div. 1991)

Opinion

October 4, 1991

Appeal from the Supreme Court, Monroe County, Cornelius, J.

Present — Callahan, A.P.J., Doerr, Boomer, Green and Davis, JJ.


Judgment unanimously modified on the law and as modified affirmed, in accordance with the following Memorandum: The People concede that the evidence at trial was insufficient to establish that defendant, as a nonowner operator of the vehicle, knew that there was not proper insurance on the car. Since it was incumbent upon the prosecution, as part of its case, to prove knowledge of facts on the part of the accused sufficient to "`constitute the act or omission'" (People v. Shapiro, 4 N.Y.2d 597, 600), defendant's conviction, under count seven of the indictment, for operation of an uninsured motor vehicle (Vehicle and Traffic Law § 319) must be reversed, the sentence imposed thereon vacated and that count of the indictment dismissed.

Supreme Court erred in sentencing defendant to concurrent terms of incarceration and a $500 fine on each of his convictions for driving while ability impaired (Vehicle and Traffic Law § 1192) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511). Because defendant's operation of a motor vehicle occurred on June 9, 1989, prior to the amendment of Penal Law § 80.15 (effective July 30, 1990), the imposition of the fines on each offense was contrary to the effective provisions. Thus, we modify defendant's sentence by vacating the fine imposed for aggravated unlicensed operation of a motor vehicle (see, People v. Magistro, 156 A.D.2d 1029, 1030; People v. Bakos, 149 A.D.2d 906, lv denied 74 N.Y.2d 844; People v. Williams, 145 A.D.2d 994; People v. Grader, 142 A.D.2d 997).

We have reviewed the other issues raised on appeal and find them to be without merit.


Summaries of

People v. Abney

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 4, 1991
176 A.D.2d 1193 (N.Y. App. Div. 1991)
Case details for

People v. Abney

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALLEN ABNEY, JR.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 4, 1991

Citations

176 A.D.2d 1193 (N.Y. App. Div. 1991)
576 N.Y.S.2d 690

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