Opinion
2K6701DXSP
06-06-2019
The People of the State of New York v. John-Paul Avital, Defendant.
For the People: Robert Noe, Esq., Town Prosecutor For Defendant: Alexander Sherwood Keenan, Esq., 20 Corporate Park Drive, Suite C, Hopewell Junction, NY 12533
For the People: Robert Noe, Esq., Town Prosecutor For Defendant: Alexander Sherwood Keenan, Esq., 20 Corporate Park Drive, Suite C, Hopewell Junction, NY 12533 Brian M. Rudner, J.
The following papers were read and considered by the Court in deciding this motion:
Papers Numbered
Notice of Motion 1
Affirmation in Support 2
Affidavit of Defendant in Support 3
Exhibits 4-5
Proposed Order 6
Affirmation in Opposition 7
Affirmation in Reply8
The Defendant has moved, by notice of motion dated December 19, 2018, for a writ of coram nobis vacating the judgments of conviction on the following matters:
| Speed in Zone (66 in 55) | Lane Change Hazard |
| Violation Date: 6/11/2004 | Violation Date: 6/10/2007 |
| Conviction Date: 10/14/2004 | Conviction Date: 7/23/2007 |
| Ticket No.: 2K6701DXSP | Ticket No.: 2K63042WSP |
The Defendant argues that the above-referenced guilty pleas should be vacated because, at the time they were entered, he could not have known that regulations enacted after the guilty pleas would impose a lifetime license revocation. The People oppose the relief requested. For the reasons set forth herein, the Defendant's motion is DENIED.
In 2012, the Commissioner of the Department of Motor Vehicles promulgated new rules and regulations relating to the re-licensure of applicants with multiple drug or alcohol-related driving convictions. See generally, 15 NYCRR Part 136 (hereinafter "the Regulations"). The purpose of the Regulations was, in part, "to take disciplinary action in order to force a change in the attitude and driving habits of problem drivers, where the Department's review indicates that such action is necessary for the protection of the applicant and the public alike." 15 NYCRR 136.1(a). As relevant here, Section 136.5(b)(2) provides that "[u]pon receipt of a person's application for relicensing, the Commissioner shall conduct a lifetime review of such person's driving record. If the record review shows that (2) the person has three or four alcohol- or drug-related driving convictions or incidents in any combination with the 25 year look back period and, in addition, has one or more serious driving offenses within the 25 year look back period, then the Commissioner shall deny the application." "Serious driving offense", as defined in 15 NYCRR §136.5(a)(2)(iv), includes "20 or more points from any violations."
The Defendant has an extensive history of driving offenses, including alcohol-related convictions in 2007, 2008, and 2013, as well as more than 21 points from violations (including the two convictions he seeks to vacate in the instant motion). The Defendant contends that as a result of the Regulations, New York State has denied his application to renew his driver's license for the last five years.
It is well-settled that the loss of a driver's license is a collateral consequence of a judgment of conviction. See People v. Ford, 86 NY2d 397, 403 (1995); People v. Williams, 150 AD3d 1549 (3d Dept. 2017); People v. Garraway, 144 AD3d 703 (2d Dept. 2016); People v. Hill, 57 Misc 3d 154(A) (App. Term 2d Dept. 2017) (the possibility that the reinstatement of defendant's driver's license might be administratively denied was a collateral consequence); People v. Olecski, 57 Misc 3d 698 (City Ct., City of New York, 2017) (relicensing ramifications under 15 NYCRR 136.5(b)(3)(ii) were a collateral, and not direct, consequence of plea). Thus, the Defendant's loss of his driver's license is a collateral consequence of his guilty pleas and not a valid basis to disturb the instant convictions.
In moving to vacate these convictions, Defendant argues that at the time of his guilty pleas, he did not know, and could not have known, that his pleas would result in a lifetime suspension of his license to drive. This argument is unavailing. First, it is belied by the fact that his 2013 conviction for driving while intoxicated occurred after the Regulations had gone into effect. Whether Defendant (or his then attorney) knew of the Regulations at the time of the 2013 guilty plea, he certainly could have known. Defendant's ability to avoid the effect of the Regulations back in 2013 undercuts his present argument that it would be unfair and unjust to hold him to his guilty pleas in light of then-unknown consequences. Second, the Defendant's insistence that the instant guilty pleas led to a lifetime suspension of his license is inaccurate and, in the view of this Court, an attempt to focus attention on the instant guilty pleas rather than the entirety of the Defendant's driving history. It is not the Defendant's 2004 conviction for speeding that caused the lifetime suspension of his license. It is not the Defendant's 2007 conviction for hazardous lane change that led to the lifetime suspension of his license. It is the Defendant's complete driving history, including three driving while intoxicated offenses, that has brought him within the purview of the Regulations.
Moreover, even before the Regulations in their present form went into effect, re-issuance of a new license to an offender whose license had been revoked was (and remains) subject to the discretion of the DMV Commissioner. See Vehicle and Traffic Law §§510(6)(a) & 1193(2)(c); Acevedo v. New York State Dept. of Motor Vehicles, 29 NY3d 202, 214 (2017).
The Defendant relies heavily on the case of People v. Velte, 61 Misc 3d 331 (City Ct., City of Poughkeepsie, 2018). For the reasons set forth herein, this Court finds the rationale of Velte unpersuasive and declines to follow it. The Court finds the holding of People v. Wheaton, 49 Misc 3d 378 (Cty. Ct., Seneca Cty., 2015) more compelling. In Wheaton, the defendant moved pursuant to CPL §440 to vacate a 2004 conviction for driving while intoxicated because his driver's license was subsequently revoked in 2013 under 15 NYCRR Part 136. The Court in Wheaton denied the motion to vacate, finding the loss of the driver's license was a collateral consequence and that the "defendant's grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction." Id. at 379; see also People v. Capraro, 51 Misc 3d 1212(A) (City Ct., City of Mt. Vernon, 2016) (CPL §440 motion to vacate speeding conviction denied despite extreme financial hardship suffered by defendant resulting from permanent ineligibility for relicensing due to 15 NYCRR §136.5[b][2]).
Finally, were the Court to grant the Defendant's motion, it would, in effect, be invalidating the Regulations as applied to the Defendant. In light of his driving history, the Defendant appears to be exactly the type of problem driver the Regulations were promulgated to address. The Court will not intrude upon the province of the Commissioner of the Department of Motor Vehicles by vacating guilty pleas that, on the record before the Court, were knowingly and voluntarily entered. Based upon the foregoing, it is hereby
ORDERED that the Defendant's motion is denied in all respects.
The foregoing constitutes the Decision and Order of this Court. Dated: June 6, 2019 Hopewell Junction, New York _________________________________ Hon. Brian M. Rudner, Town Justice