Opinion
October 18, 1954.
Article 78 proceeding, transferred to this court pursuant to section 1296 of the Civil Practice Act, to review a final determination of the Commissioner of Motor Vehicles suspending petitioner's driver's license for fifteen days, pursuant to paragraph (d) of subdivision 3 of section 71 Veh. Traf. of the Vehicle and Traffic Law, for habitual violations. Determination annulled, without costs. There is an absence of any proof in the record that petitioner had been warned of the consequences with respect to his operator's license, in conformance with section 335-a of the Code of Criminal Procedure, upon the two occasions when he pleaded guilty of speeding in New York City. Accordingly, the convictions for said offenses may not be used as grounds for suspension of his license. ( Matter of De Lynn v. Macduff, 305 N.Y. 501; Matter of De Martino v. Mealey, 284 N.Y. 231.) Since, under the procedure adopted by respondent, the remaining convictions total five points, and respondent's own rule requires a minimum of six points in two years to constitute an operator a habitual violator, the determination herein was clearly erroneous, even if we assume that all said remaining convictions may be properly considered for purposes of license suspension. Adel, Acting P.J., Wenzel, MacCrate, Schmidt and Murphy, JJ., concur.