Opinion
1064-2019
10-23-2019
The PEOPLE of the State of New York v. Mariusz JASTRZEBSKI, Defendant/Appellant.
Zev Goldstein, Monsey, for appellant. Kenneth C. Klein, Jeffersonville, for respondent.
Zev Goldstein, Monsey, for appellant.
Kenneth C. Klein, Jeffersonville, for respondent.
Frank J. LaBuda, J.
By Decision dated July 18th, 2019, this Court granted defendant leave to appeal the Town of Liberty Justice Court's Coram Nobis Decision, that is to say, the Decision of the Town Justice which denied the defendant's Coram Nobis motion to vacate his guilty plea .
Harold Bauman, Esq.
On 6-17-18 Defendant was stopped and charged with Speeding 82 mph in a 65 mph zone. On 6-30-18 the Defendant signed a guilty plea on his Uniform Traffic Ticket and was sentenced on July 9th, 2018 by Justice Bauman; a $243.00 fine was imposed.
Defendant submits Appellant Brief and Rebuttal Brief. The People submit Respondent Brief.
The Town of Liberty Justice Court has filed their "Return" on appeal. The Court's "Return" includes defendant's original ticket with plea and fine sentencing letter, defendant's Motion and Reply Affirmation, the People's Affirmation in Opposition and the April 30th, 2019 Decision and subsequent letter Decision o May 14th, 2019 from the Liberty Justice Court denying the Defendant's Coram Nobis Motion. This matter has been fully submitted to the Court on appeal pursuant to CPL 460.10 and no oral arguments are requested.
The issue on this appeal is whether the Justice Court was in error when it denied defendant's Coram Nobis motion to vacate his guilty plea. The Defendant argues that the Justice should have granted his Coram Nobis Motion to vacate on the grounds that he was not aware at the time of his plea of the potential collateral effect that plea would have on his driving privileges and car insurance, namely; that his driver's license would be suspended for obtaining more than 11 points on his license within an 18 month period.
Factual Background :
On June 17th, 2018 in the Town of Liberty, the defendant was charged by Uniform Traffic Ticket with speeding 82mph in a 65mph zone; a violation of Vehicle and Traffic Law § 1180-d (a four point violation).On June 30th, 2018, the defendant entered a guilty plea by signing the "guilty plea" section on his traffic ticket. At the time of the Defendant's guilty plea, he had a five point violation on his driving record as a result of a prior cell phone violation received in New York City on June 9th, 2017 . Defendant argues that had he been advised as to a potential suspension of his driving privileges he would not have pled guilty but instead would have hired an attorney and negotiated to obtain a better resolution of his charge or go to trial.
NYS VT & L § 1225-c use of mobile telephones is a five point violation.
Shortly after pleading guilty in the Town of Liberty, the Defendant was convicted in the Town of Mamakating Justice Court of speeding 69 mph in a 55mph zone on December 10th, 2018. This resulted in the suspension of the Defendant's driver's license by reason of accumulating in excess of 11 moving violation points on his driving record within an 18 month period . The Defendant then hired an attorney and brought a Coram Nobis Motion in the Town of Mamakating and in the Town of Liberty. The Mamakating motion was granted and the Liberty motion was denied. The Defendant appeals the Liberty denial of his Coram Nobis Motion based on his failure to be advised of the collateral consequences of his plea. In rendering his subsequent Supplemental Decision and Order dated May 14th, 2019, Judge Bauman specifically addressed the Defendant's argument that he was not aware of the consequences of a potential suspension of his driving privileges when he plead guilty to the charge. The Prosecutor Kenneth Klein, Esq. points out that the "language at the bottom of the subject ticket is sufficient to make the Defendant aware of the consequences of his guilty plea".
NYS VT & L 1180 violation 69 mph in a 55 mph zone is 14 mph over speed limit and therefore is a four point violation.
Defendant had on his driving record a five point violation from a 2017 mobile phone violation VT & L 1225-c ; the Town of Liberty VT & L 1180-d speed violation on June 2018, a four point violation; and the December 2018 1180-d violation a four point violation for a total of 13 points on his driving record.
The Defendant hired legal counsel and brought a Coram Nobis motion in the Town of Mamakating which was granted and the Defendant's conviction was vacated and his suspension rescinded.
The Honorable Cynthia Dolan presiding.
Directly below, and part of the same sentence as the Defendant's signature and his guilty plea are the following words:
"I Mariusz Jastrzebski have been charged with the violation as specified on the other side of this ticket. I acknowledge receipt of the warning printed in bold type on the other side of this ticket, and I waive arraignment in open court and the aid of an Attorney. I plead GUILTY to the offense as charged and request that the charge be disposed of and a fine or penalty fixed by the court."
And opposite the defendant's signature in bold print is the above mentioned warning as follows:
"A PLEA OF GUILTY TO THIS CHARGE IS EQUAL TO A CONVICTION AFTER TRIAL IF YOU ARE CONVICTED NOT ONLY WILL YOU BE SUBJECT 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 [emphasis added] AS PRESCRIBED BY LAW."
It has been held, both by the New York Court of Appeals and the United State's Supreme Court, that a trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences ( People v. Harris , 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; Boykin v. Alabama , 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 ). It has further been held however that the court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" ( North Carolina v. Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162, citing Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, supra; see also, the New York Court of Appeals in People v. Moissett , 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653 ). Admittedly, a Criminal court or Magistrate's Town Court is not required to advise on all the ramifications of a guilty plea personal to a defendant. Accordingly, the courts have drawn a distinction between consequences of which the defendant must be advised, those which are "direct", and those of which the defendant need not be advised, "collateral consequences" ( Fruchtman v. Kenton , 531 F.2d 946, 948, cert denied 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 ; and see, Michel v. United States , 507 F.2d 461, 466 ).
The courts have defined a direct consequence as one which has a definite, immediate and largely automatic effect on defendant's punishment ( Cuthrell v. Director, Patuxent Inst. , 475 F.2d 1364, cert denied 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 ). And collateral consequences as those specific to an individual Defendant such as the loss of the right to vote or travel abroad ( Meaton v. United States , 328 F.2d 379 ), loss of civil service employment ( United States v. Crowley , 529 F.2d 1066, cert denied 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 ), or loss of a driver's license [emphasis added] ( Moore v. Hinton , 513 F.2d 781 ). Consequently, it has been held that the failure to warn of such collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control and may be based upon prior conduct of the Defendant unrelated to the specific conviction (see, United States v. Sambro , 454 F.2d 918, 922 ; Sanchez v. United States , 572 F.2d 210, 211 ). Such as, in this case, the Department of Motor Vehicles.
In People v Ford , 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] the Court of Appeals, in deciding whether failure to notify the Defendant of the possibility of deportation warranted vacating his guilty plea and his judgment of conviction, the Court held that deportation was a collateral consequence of conviction because it was a result peculiar to a defendant's personal circumstances and not within the control of the court system and therefore did not warrant vacating the defendant's conviction. Ford was later overruled in part by the Court of Appeals in People v. Peque , 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013 Court of Appeals] due to the automatic and legal significance that the potential deportation holds for many non-citizen defendants. However, in overruling in part the Ford decision the Court of Appeals in Peque , reaffirmed the central holding of Ford regarding the duties of a trial court and the distinction between direct and collateral consequences of a guilty plea. The Peque Court was careful to clarify that it was not their intent to affect the central precedent set in the Ford case; namely; that the trial court's failure to provide such advice does not entitle the defendant to automatic withdrawal or vacatur of the plea. Rather, the Court of Appeals in Peque pointed out "to overturn his or her conviction, the defendant must establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of the a collateral consequence, he or she would have rejected the plea and opted to go to trial."
Therefore, in order to withdraw or obtain vacatur of a plea, a defendant must show that there is a reasonable probability that he or she would not have plead guilty and would have gone to trial had the trial court informed the defendant of the potential collateral consequence. In determining whether the defendant has shown such prejudice, the Court should consider, among other things, the favorability of the plea, the potential consequences the defendant might face upon a conviction after trial, and the strength of the People's case against the defendant ( People v. Peque , 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 supra).
In People v. Ali , 35 A.D.2d 435, 317 N.Y.S.2d 377 [Appellate Division, Third Dept. 1971], the Appellate Division considered a similar issue. The Ali Defendant plead guilty to a Penal Law felony and a misdemeanor, and later filed a Coram Nobis motion looking to vacate his conviction arguing that his counsel had not advised him of his right to appeal. The Appellate Division upheld the lower court's denial of the Defendant's motion to vacate in stating:
In May, 1969 defendant plead guilty to feloniously selling a narcotic drug, a felony, and unlawful possession of a hypodermic needle, a misdemeanor.
"...the defendant failed to allege that he in fact wished to appeal and would have taken a timely appeal had he been properly informed of his rights."
Based on the foregoing legal precedent, this Court is constrained to hold that the Town of Liberty Justice Court made no errors of law in its Decision dated April 30th, 2019 or in its subsequent letter decision dated May 14th, 2019 because the "collateral consequences" were written upon the Defendant's guilty plea and the Defendant's subsequent actions unrelated to the Town of Liberty offense caused his licensed to be in jeopardy.
At the time this Defendant plead guilty by mail in the Town of Liberty Justice Court to the offense at bar, he had a five (5) point violation on his driving record. His plea of guilty in the Town of Liberty to the 1180-d charge of speeding 82 mph in a 65mph zone, at bar, added an additional four (4) points to his driving record. The Town Justice Court had no obligation to warn the Defendant prior to his accepting his written guilty plea that his driver's license could be suspended if he had more, or in the case at bar, he had total points of nine (9) and that eleven (11) points would trigger a suspension of his driving privileges . It was only after the defendant continued to disregard the Vehicle and Traffic Laws by subsequently being convicted in the Town of Mamakating Justice Court of speeding 69 mph in a 55mph zone on December 10th, 2018 that the violation points on his driving record reached beyond the eleven (11) points within eighteen (18) months threshold that triggered his suspension. Albeit, it should be noted here that the Defendant filed a Coram Nobis Motion in the Town of Mamakating after receiving his conviction and subsequent suspension and the Town of Mamakating Court granted that motion and reinstated his driving privileges.
At the time of the plea of guilty in the Town of Liberty Justice Court to speeding 82mph in a 65mph zone (V & TL 1180b; June 30th, 2018), the defendant had a mobile telephone violation on his driving record (V & TL 1123-c; June 9th, 2017)which was a five (5) point violation. This brought the total number of points on his driving record, after the Liberty plea, to nine (9) points and not the eleven (11)points which would result in a suspension of his driving privileges.
The defendant's claim that he was not aware of the collateral consequence of license suspension is without merit. The Uniform Traffic Ticket clearly states in bold print opposite the Defendant's signature and guilty plea " YOUR LICENSE TO DRIVE A MOTOR VEHICLE OR MOTORCYCLE, AND YOUR CERTIFICATE OF REGISTRATION, IF ANY, ARE SUBJECT TO SUSPENSION AND REVOCATION [emphasis added]. Furthermore, the Defendant's signature is directly beneath the warning "I acknowledge receipt of the warning printed in bold type on the other side of this ticket, and I waive arraignment in open court and the aid of an Attorney." Having so read and signed these clear warnings there is alleged no ambiguity that he can now be heard to complain that he did not know of the collateral consequences of a possible license suspension or the need for advice of counsel . The Defendant's guilty plea was taken knowingly and voluntarily. The defendant offered no proof that had he known on June 30th, 2018 that his privileges could be suspended if he were to receive 11 points on his license within 18 months that he would have chosen to go to trial, obtain counsel, or negotiate a different plea (See People v. Ali , supra ). It is more likely than not that had the Defendant known that entering a plea of guilty to the Town of Liberty charge which resulted in a total of nine points on his record, would have and in fact did have no consequence in his final decision to plea guilty to the charge because that plea did not put his license in danger of being suspended.
There is no allegation that the Defendant could not read or understand the written text i.e. incompetency, illiteracy or a speaker of a foreign language.
The defendant acquiesced to his plea and with his sentence of a fine of $243.00, following his guilty plea to the charge in the Town of Liberty. He made no attempt to set aside his plea for nearly a year until such time as he received his third violation in the Town of Mamakating Justice Court. The People should not be put in the position of having to litigate a charge one year after a plea simply because the defendant has chosen to wait until he obtains further offenses on his driving record before moving to object to the prior plea. It is well established that cases are best tried while witnesses memories are fresh and the evidence maintained closest to the proximity of the date of the offense and these time delays are prejudiced to the litigants.
Although a Coram Nobis motion may be made at any time, defendant herein waited nearly one year to move to vacate his conviction and there is, to this date, no suspension of driving privileges proceedings pending because he has successfully moved in the Town of Mamakating to vacate his most recent conviction and have his driving privileges reinstated. The Defendant urges this Court to clarify the law with regard to whether the codification of CPL § 440.10 superseded the Coram Nobis relief. Since the Court holds that the Town of Liberty Justice Court made no error in refusing to vacate the Defendant's conviction, the court finds no reason to address the issue regarding the validity of whether the refusal to vacate the Defendant's conviction was determined under the provision of CPL § 440.10 or pursuant to the theory of Coram Nobis. It is the opinion of this Court that the result would have been the same under each; a denial of the Defendant's request to vacate his speeding conviction. The facts herein presented do not warrant an expansion of the law under either the defendant's due process rights or in the interest of justice.
If there was a suspension of driving privileges proceeding pending this Court would conduct a fact finding hearing with regard to the due process and interest of justice issues impacting the defendant and his family.
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Based upon the above, it is
ORDERED , that defendant's appeal from the Decision dated April 30th, 2019 and subsequent letter Decision dated May 14th, 2019 of the Town of Liberty Justice Court is denied and said Decision is affirmed.
This shall constitute the Decision and Order of this Court.