Opinion
No. 12110133
12-21-2023
The People of the State of New York, Plaintiff, v. Brandon G. Bowman, Defendant.
Sandra Doorley, District Attorney, Monroe County (Elizabeth D. Buckley and Kirby W. Leggett [awaiting admission] of Counsel), for plaintiff James L. Riotto II, Esq., Rochester, for defendant
Unpublished Opinion
Sandra Doorley, District Attorney, Monroe County (Elizabeth D. Buckley and Kirby W. Leggett [awaiting admission] of Counsel), for plaintiff
James L. Riotto II, Esq., Rochester, for defendant
Thomas J. DiSalvo, J.
History of the Case
The defendant was charged with four Vehicle and Traffic violations on November 22, 2012, to wit: VTL § 1180 (b), Speeding going 87 miles per hour in a 55 mile per hour zone , VTL § 509 (3), operating in violation of restriction, VTL 509 (1), unlicensed operation and VTL 508 (8), failure to notify the Department of Motor Vehicles of a change in address. The uniform traffic informations served on the defendant were returnable in Webster Justice Court on December 18, 2012. However, the defendant's first appearance in this Court was on March 6, 2013, wherein the defendant was arraigned by me. At that time the Assistant District Attorney offered the defendant a plea deal, which would allow him to plead to a three point speed, i.e. 64 miles per hour in an 55 mile per hour zone and to being an unlicensed operator in full satisfaction of the original four charges. He was never represented by counsel in this matter. In any event, he plead to the said two charges on March 6, 2013. The defendant was fined $45.00 with a surcharge of $85.00 on the speeding violation and $15.00 with a surcharge of $85.00 on the unlicensed operation violation. Neither of those fines were paid until April 29, 2021, some eight years later.
This would be an 8 point violation.
The defendant was 24 years old at the time of his plea.
Facts & Arguments
On October 18, 2023 motions were filed with the Court by defense counsel requesting pursuant to CPL § 440.10, et seq. and pursuant to 440.10 (3) (c) [sic] that convictions set out in the said uniform traffic informations be vacated. The People have filed an Affirmation in Opposition to Vacate the Convictions on November 14, 2023.However, as previously noted herein the defendant only plead guilty to the reduced speeding and unlicensed operation charges. The remaining charges having been satisfied.
That sub-section deals with when a court may deny a motion to vacate a judgment.
Thus, some of the initial facts alleged by defense counsel are incorrect. The defendant's motions allege on information and belief that the defendant plead guilty to all of the violations to which he was charged. However, court records indicate that was not the case. In fact as stated the defendant plead to a reduced speeding ticket, i.e. a 3 point speed and operating without a license, a zero point ticket. The remaining charges were satisfied.
The defense further states that the Court failed to inform the defendant that a plea of guilty to the traffic violations was equivalent to a conviction after trial and that he would be both liable for a penalty but his license could be subject to suspension and revocation as prescribed by law in violation of VTL 1807 (1). However, The last paragraph of that sub-section as follows:
" The giving of the foregoing instructions by means of a statement printed in a noticeably distinct manner and in bold type in a size equal to at least twelve point type, upon a summons or ticket issued to a person charged with any such offense shall constitute compliance with the requirements of this section."
A review of the simplified traffic informations herein, which are also referred to as "e-tickets", state on their face as follows:
"SECTION 1807 OF THE VEHICLE AND TRAFFIC LAW PROVIDES THAT DEFENDANT, IN CERTAIN CASES, MUST BE INFORMED IN SUBSTANCE AS FOLLOWS:
'A plea of guilty to this charge is equivalent to a conviction after trial. If you are convicted, not only will you be liable to a penalty, but in addition your license to drive a motor vehicle or motorcycle, and your certificate of registration, if any, are subject to suspension and revocation as prescribed by law.'"
Furthermore, the defendant complains that had he been aware of the consequences of his conviction, namely that his license could be put in jeopardy, he would have hired an attorney to negotiate a reduction of the charges. He further laments that he was not put in the same position as other defendants that were able to enter a plea bargain that would have resulted in a lesser charge or charges. Again, the defendant must have forgotten that the top charge was reduced from an eight point violation to a three point violation, that two charges were satisfied and that the remaining charge of VTL 509 (3), to which he plead, did not result in any points assessed to his driver license. Thus he did enter a plea bargain with the Monroe County District Attorney's Office on March 6, 2013, which means, to quote his motions papers, he was "... put in the same position as numerous other motorists appearing before the Court for purposes of negotiating a reduction in the traffic offense".
Defendant cites CPL § 440.10 (h) which states that a prior judgment of conviction can be vacated if "The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States".In particular the defendant maintains that he was denied his right to obtain counsel. Defense counsel states in his affirmation that "Given the nature of the charge, the Defendant-Applicant had the right to request the assistance of counsel or request an adjournment to obtain counsel." First of all the defendant had approximately 108 days between the date of the offenses and date he first appeared in court to consult an attorney. Second of all this Court takes judicial notice of the procedure it has maintained for 22 years, wherein specifically at an arraignment of a traffic offense, the defendant is advised of the charges, the right to obtain an attorney and the right to a trial and the right to a supporting deposition from the police officer. This court then asks the defendant" Do you understand those rights?" A negative response would result in further explanation by the Court. Again, the court will take judicial notice that said procedure was in fact performed at the arraignment herein. Thus the defendant was never denied his right to obtain counsel. Nor has this court ever denied a defendant his or her right to an attorney.
Defense counsel cites as his authority People v. Rios, 9 Misc.3d 1, 801 N.Y.S.2d 113(App. Term, 2d Dept 9th & 10th Jud Dists 2005)In that case the court reversed the judgment of conviction to various traffic infractions, because the Court determined that the defendant therein was not adequately advised of his right to obtain an attorney. That was not the situation herein. Thus defense counsel's reliance on Rios is misplaced. In any event this Court has previously held as follows:
(Id.)
"The court in Rios failed to reference CPL § 170.10 (1) (a), which concerns the arraignment on a simplified traffic information rather than a criminal prosecution. In the practice commentaries for that statute it states that
'Turning to the arraignment procedure itself, the basic statutory requirement is personal appearance by the defendant, but this is excusable in two situations where the court has discretion to dispense with same (see subd. 1). The first exception (1[a]) encompasses the vast majority of cases; the many millions of charges prosecuted by simplified information - e.g., traffic infractions. Where the substantive body of law that defines an offense charged in a simplified information permits a plea of guilty by mail, the defendant may offer to waive arraignment, plead guilty and be sentenced through communications by mail. Thereupon the court may proceed as if the defendant had been convicted in open court and may notify defendant of the fine or penalty imposed. Or, the court may deny the application and notify defendant to appear at a stated time and place for arraignment in person. (Donnino, Practice Commentaries, McKinney's, CPL § 170.10)'"
Thus the defendant could have simply plead guilty to the original charge by mail, been assessed a fine and surcharge, without his ever having appeared in court and being advised of his said rights. 'It is well-settled that there is no constitutional requirement that a defendant have the benefit of counsel in the prosecution of a traffic infraction (see, People v. Letterio, 16 N.Y.2d 307, 266 N.Y.S.2d 368, 213 N.E.2d 670 [1965]; People v. Russo, 149 A.D.2d 255, 545 N.Y.S.2d 211 [2nd Dept.1989]) (People v. Forbes, 191 Misc.2d 573, 574-575, 743 N.Y.S.3d 676, 677 [2002])'" (People v. Phommanirat, 2023 NY Slip Op. 51082[U] *3).
(See also CPL § 170.10 (3) (c) which statutorily does not allow for the assignment of counsel at arraignment when the defendant is charged with a traffic infraction.)
The concept that the "Defendant-Appellant was deprived of his due process right of consulting with an attorney before pleading guilty to an 8 point moving violation" is totally without merit. First of all as previously indicated the defendant plead to the reduced charge of a 3 point ticket [65/55'] as part of a plea deal. Second, the defendant had over three months to consult an attorney. Third, he was advised of his right to obtain an attorney at his arraignment. Instead, the defendant did not ask for an adjournment to obtain an attorney, but went ahead and accepted the plea offer made by the assistant district attorney.
Defense counsel indicates in his motion papers that the defendant has been without driving privileges since 2014. He further states that because of the cumulative administrative points he is ineligible for re-licensing forever and his driver license is permanently revoked. No other specific reason or reasons where given as to why the defendant would not qualify for a driver license. The defense blames this predicament on his lack of knowledge that his pleas in Webster Court would contribute to the lifetime revocation of his license, rather than his particular driving record. However, on November 17, 2010 his license was suspended for 90 days because of a conviction to driving while ability impaired by the consumption of alcohol. On October 31, 2012 his license was revoked for six months because of a conviction to common law driving while intoxicated. On December 25, 2012 his license was suspended for failure to pay the driver assessment. That issue was not cleared until April 26, 2021. On March 21 2014 his license was revoked for a refusal to submit to a chemical test. On August 19, 2014 his license was revoked for 18 months because of a conviction to felony driving while intoxicated. The defendant had various other suspensions and a revocation labeled "3 Speed/Misdem 18 Mo"effective August 19, 2014 listed on his driving record as well.
In general the department of Motor Vehicles promulgated regulations in 2012 that resulted in guilty pleas entered years earlier by individuals as having an adverse effect as to the re-licensing of said individuals. Those regulations are set out in 15 NYCRR 136. Part 136 is entitled "Licensing or Relicensing After Revocation Action".
(Rose, New York Vehicle and Traffic Law § 15:3.60 at 208 [Cumulative Supp 2nd ed])
In particular defense counsel cites sub-section 136.5 (b) (2) which states as follows:
"the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within 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 [emphasis added] deny the application."
A "serious offense" is defined in 15 NYCRR 136.5 (a) (2) as
(i) a fatal accident;
(ii) a driving-related Penal Law conviction;
(iii) conviction of two or more violations for which five or more points are assessed on a violator's driving record pursuant to Section 131.3 of this Title; or
(iv) 20 or more points from any violations.
Again, the defendant does not specify the specific reason for the refusal of the Department of Motor Vehicles to grant defendant a driver license pursuant to 15 NYCRR 136. However, one must suspect, based on defendant's motion papers, that his concern was number of points on his license.
Defense counsel maintains that his client would not have entered a guilty plea in Webster Court in March of 2013 if he was aware of the collateral consequences of such a plea. First of all
"§ 510 of the New York State Vehicle and Traffic Law affords the Commissioner the discretion to reissue a license that has been revoked. 15 NYCRR 136.1(a) identifies the intent of the Commissioner's rules as, inter alia, 'keeping with his responsibility to provide meaningful safeguards for the general public who are users of the highways' and to establish 'criteria to identify problem drivers, the application of which shall result in a presumption, in certain cases, that the involved driver would present a potential danger to himself or other users of the highway if allowed to be licensed or relicensed.'" (People v. Beltran, 77 Misc.3d 1091,1094, 180 N.Y.S. 3d 859,862 [Just Ct,, Town of Deerpark, Orange County, Worden, J.])
The facts in the instant case and the arguments made by the defendant are similar in nature to those set out in People v. Newell, 76 Misc.3d 1062, 175 N.Y.S.3d 184 [Just Ct, Town of New Scotland, Wukitsch, J. 2022] The defendant in Newell, as does the defendant herein "... appears to argue that his right to a knowing and intelligent plea has been violated." Apparently he maintains that it was his belief that the only consequence of his plea would be a fine and surcharge, and presumably without any points assessed and without any future ramifications, such as the permanent loss of his license.
(Id. at 1065,187)
Two recent Second Department Appellate Division cases stand in opposition to the theory of defendant's motion. First, in People v. DiTore, 209 A.D.3d 665,667. 175 N.Y.S. 3d 562, 564 [2022], which involved a motion pursuant to CPL Section 410.10, wherein the court stated in reversing the decision of the lower court that
"The Supreme Court erred in granting the defendant's motion to vacate the judgment on the ground that his due process rights were violated. The subject regulations that led to the denial of the defendant's application to restore his driver license did not exist at the time he pleaded guilty, and the defendant failed to identify any conduct that occurred during the plea proceedings that constituted a violation of his due process rights (see People v. Avital, 64 Misc.3d 483, 103 N.Y.S.3d 812 [Town of East Fishkill Just Ct, Dutchess County]; People v. Wheaton, 49 Misc.3d 378, 17 N.Y.S.3d 586 [Seneca County Ct.]). "The defendant's grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction" (People v. Wheaton, 49 Misc.3d at 379, 17 N.Y.S.3d 586)."
Second, in a subsequent decision the Appellate Division reversed the decision of Supreme Court, Suffolk County, that granted the defendant's motion to vacate a plea entered in 2010, made pursuant to CPL § 440.10. (People v. Maggio, 210 A.D.3d 798, 178 N.Y.S.3d 153 [2022]) The court stated
"Contrary to the defendant's further contention, his unawareness that, as a consequence of his entering a plea of guilty, his driver license might never be reinstated did not prevent his plea from being knowing, voluntary, and intelligent. To the extent that the potentially permanent license revocation authorized under the subject regulation is a consequence of the defendant's instant plea of guilty at all (see People v. Avital, 64 Misc.3d 483, 485, 103 N.Y.S.3d 812 [Town of East Fishkill Just Ct, Dutchess County] [denial of relicensing under 15 NYCRR 136.5 results not from any particular conviction, but from the applicant's 'complete driving history']), it is, as the defendant acknowledges, a collateral consequence of his plea...."
(Id. 800, 156)
The court went on to state that it disagreed with the supposition of the defendant and Supreme Court, namely "... that the effective lifetime suspension of his license to drive is a consequence that, although collateral, is 'of such great importance to him that he would have made a different decision had that consequence been disclosed [citation omitted]'" It has also been held that a court is not required to advise a defendant upon his plea of guilty to driving while intoxicated "... that the revocation period would be exactly one year". (People v. Trathen, 121 A.D.3d 1594,1595, 993 N.Y.S. 3d 426 [4th Dept 2014])
(Id.)
The Court is aware that some collateral consequences of a plea must be brought to the attention of a defendant prior to plea of guilty. For example a defendant must be advised prior to entering his plea of any period of post release supervision. (People v. Rucker, 67 A.D.3d 1126, 888 N.Y.S. 3d 313 [2009]) In addition, it has been held that the collateral consequence of deportation "... constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to a defendant as a matter of fundamental fairness." (People v. Peque, 22 N.Y.3d 168,194, 980 N.Y.S.3d 280,298 [213]) Nevertheless, collateral consequences of a plea to a traffic offense that may result from a possible change in regulations relative to the ability to obtain a driver license in the future do not represent such a substantial and unique consequence that they must be part of a plea allocution. Defendant cites in support of his motion to vacate his client's traffic infraction convictions People v. Peque, 22 N.Y.3d 168, 81 N.Y.S.3d 773 (Poughkeepsie City Court 2018). This court finds that case to be unpersuasive. In addition, the court is bound by the two recent Appellate Division cases cited herein, to wit: DiTore & Maggio.
Defense counsel's next argument is that the judgments of conviction should be vacated in the interests of justice. In support of said argument he cites CPL 440.10 (3) (c) as authority for the position that "The Court has discretionary power to vacate the Defendant's original conviction 'In the interest of justice and for good cause shown'" That subsection simply does not stand for that proposition. CPL 410.10 (1) sets out in sub-sections (a) through (k) situations where in the court must vacate a judgment of conviction. Vacating a judgment in the interest of justice is not one of those situations.
In any event the interest of justice argument of the defense rests to a large degree in the hardship that is suffered by the defendant in not being able to currently obtain a driver license. Frankly, there does not appear to be any statutory or appellate level support for such a claim. That specific issue was before the Court in People v. Beltran,77Misc.3d 1091, 180 N.Y.S.3d 859 [Deerpark Just Ct, 2022]. In that case the court refused to vacate the defendant's 2006 plea to a charge of speeding. It should be noted that the defendant in that case had plead guilty by mail. The defendant had argued in his motion that the loss of his driver license "'have [sic] critically hurt his ability to earn a livelihood.'" In response, the court held that
(Id. at 1092, 861)
(Id. at 1102, 868)
"Financial hardship from the loss of a driver's license or operating privileges is not a 'countervailing factor.' (People v Gallagher, 2020 NY Slip Op 51599[U],; People v Capraro, 2016 NY Slip Op 50633[U].) Further, financial hardship and burden is not limited to this defendant. Rather, it is likely a factor in similar cases of lifetime revocation. (People v Newell, 76 Misc.3d 1062.) While this court is fully cognizant of the limitations experienced by defendant due to the lack of a driver's license, it does not find financial hardship to be a compelling, overarching reason to vacate the 2006 plea and is unwilling to vacate the judgment of conviction based upon this claim."
(Id.)
This court finds that ruling persuasive. The court owes a duty of being fair to both the People and the defendant on each case that come before it. This court agrees with the concept that vacating a guilty plea many years "... after it had been entered, and restoring the case to the calendar, is patently a prejudice in favor of the defendant and adverse to the people's ability to re-prosecute this matter." (People v. Beltran, 77 Misc.3d 1091,1102, 180 N.Y.S.3d 859,867 [2022])
The motion herein was not brought as a common law Writ of Error Coram Nobis.
(A "Writ of Error Coram Nobis", which is defined as "A common-law writ, the purpose of which is to correct a judgment in the same court in which it was rendered, on the ground of error of fact." (See Black's Law Dictionary [Revised Fourth Edition 1968] at 1785)
"While '[m]ost of the common-law, coram nobis types of relief were abrogated when the Criminal Procedure Law was enacted,' that law 'did not expressly abolish the common-law writ of coram nobis or necessarily embrace all of its prior or unanticipated functions.'... 'Once the Legislature has [however] established a remedy, the terms of the applicable statute control the scope of that remedy.' People v Jackson, 78 N.Y.2d 638, 647, 578 N.Y.S.2d 483, 585 N.E.2d 795 (1991).... But see People v Syville, 15 N.Y.3d 391, 400, 912 N.Y.S.2d 477, 938 N.E.2d 910 (2010) (' the writ continues to be available to alleviate a constitutional wrong when a defendant has no other procedural recourse."' (Donnino, Practice Commentaries, McKinney's, CPL § 440.10)"
This court finds no such constitutional wrong suffered by the defendant herein. Nevertheless, "The vacatur of the judgment of conviction rests solely in the discretion of the court of conviction upon one of the grounds enumerated in CPL 440.10, each of which evidences a substantial flaw in the judgment being challenged." (People v. Felman, 137 A.M.2d 341,343, 529, N.Y.S.2d 395,397 [3d Dept 1988]) This Court finds no flaws in the said judgments being challenged.
Conclusion.
The motions to vacate the judgments of conviction to the traffic offense entered on March 6, 2 013 are hereby denied in all respects.