Opinion
File No. 22090015
09-15-2022
PEOPLE of the State of New York v. Michael T. NEWELL, Defendant.
FOR THE PEOPLE: HON. P. DAVID SOARES, Albany County District Attorney, Noah Engelhart, Esq., Assistant District Attorney, Albany County Judicial Center, 6 Lodge Street, Albany, New York 12207 FOR THE DEFENDANT: STEPHEN T. COMMINS, ESQ., Attorney for Defendant, 125 Wolf Road, Suite 101, Albany, New York 12205
FOR THE PEOPLE: HON. P. DAVID SOARES, Albany County District Attorney, Noah Engelhart, Esq., Assistant District Attorney, Albany County Judicial Center, 6 Lodge Street, Albany, New York 12207
FOR THE DEFENDANT: STEPHEN T. COMMINS, ESQ., Attorney for Defendant, 125 Wolf Road, Suite 101, Albany, New York 12205
David J. Wukitsch, J. Before this court is defendant Michael T. Newell's coram nobis application to vacate judgments of conviction rendered upon his 1992 guilty pleas in this court to charges of driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) and improper passing in violation of Vehicle and Traffic Law § 1128. Because defendant had a total of three alcohol related convictions and more than 20 total points on his lifetime driving record, the Department of Motor Vehicles ("DMV") denied his 2012 application for re-licensure and, pursuant to DMV regulations adopted in 2012, he was deemed permanently ineligible for re-licensure ( 15 NYCRR§ 136.5 [b][2]). The issue raised here is whether coram nobis relief should be granted vacating the decades old guilty pleas in this court where the defendant is able to make a showing of hardship arising from the permanent loss of his driving privileges and he avers that at the time of his 1992 guilty pleas he could not possibly have known that such pleas and the subsequent 2012 DMV regulations would result in a lifetime suspension of his license to drive in this state. In 2012, the DMV amended its regulations to provide for a lifetime review of a person's driving record when, among other things, a person with multiple alcohol or drug-related driving convictions applies for relicensing ( 15 NYCRR§ 136.5 [a]). The purpose of the regulations is to take disciplinary action for the protection of the applicant and the public ( 15 NYCRR § 136.1 [a]). A person with five or more alcohol or drug-related convictions is permanently barred from obtaining a driver's license ( 15 NYCRR § 136.5 [b][1]). Of relevance here, a person with three or more alcohol or drug related convictions may reapply for driving privileges five years after expiration of the statutory revocation period ( 15 NYCRR § 136.5 [b][3][i][ii]). However, a person with three or more alcohol or drug-related driving convictions who also has one or more "serious driving offense" may never be relicensed ( 15 NYCRR § 136.5 [b][2]). The definition of "serious driving offense" includes the situation where the driver has amassed 20 or more points from any traffic violations ( 15 NYCRR § 136.5 [a][2][iv]).
Applying these DMV regulations, defendant may apply to be relicensed because he has three (not five or more) prior alcohol related convictions: a 1992 VTL§ 1192 (1) conviction in this court; a 1999 VTL§ 1193 conviction in Ravena Village Court; and a 2009 VTL§ 1192 (1) conviction in the New Baltimore Town Court. However, a review of his lifetime driving record and the 25-year look back period shows that he had more than 30 points on his license when he applied for re-licensure in 2012. Therefore, he also meets the DMV definition of "serious driving offense," having amassed 20 or more points from any traffic violation ( 15 NYCRR § 136.5 [a][2][iv]), which, in conjunction with his three alcohol-related driving convictions--results in a lifetime revocation of his driver's license. The defendant is unable to mount a direct challenge to the DMV regulations because the Court of Appeals has ruled that they do violate due process or offend the ex post facto clause ( Matter of Acevedo v. New York State Dept. of Motor Vehs., 29 N.Y.3d 202, 54 N.Y.S.3d 614, 77 N.E.3d 331 [2017] ). Instead, he contends that it is unfair and an undue hardship to permanently deprive him of driving privileges, in part, because of the impact of the 2012 DMV regulations on the thirty-year old convictions in this court. The People oppose defendant's application for coram nobis relief.
The New York Criminal Procedure Law codifies the requirements for coram nobis relief under CPL § 440.10. Notably, "where a motion is made under CPL § 440.10, a hearing to develop additional background facts is [not] invariably necessary" ( People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ). At a court appearance on September 8, 2022, defense counsel conceded on the record that a hearing is not required. Under these circumstances, this court will determine the application based on the written submissions ( Satterfield, supra at 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 ). While the applicable statute sets out specific grounds for vacating a guilty plea ( CPL § 410.10 (1) [a-k] ), defendant does not allege in his written submission the specific ground(s) he is relying upon for the relief requested. A review of the grounds set forth under CPL § 410.10 (1) (a-k) indicates that none of them directly encompass the situation present in this case. Nonetheless, when the CPL§ 440.10 statute does not cover the precise situation for which the defendant seeks to set aside the judgment of conviction, the application may be made by relying on the common law writ of coram nobis ( People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 [1987] ). Treating the instant application as one for common law coram nobis relief, the main issue raised in the written submission concerns the fact that at the time of his 1992 pleas of guilty in this court defendant did know, and could not have known, that later in life and after changes made by the DMV, he would become ineligible to hold a New York driver's license based in part on his traffic convictions in this court. In essence, defendant appears to argue that his right to a knowing and intelligent plea has been violated ( People v. Tyrell, 22 N.Y.3d 359, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ).
To support the relief requested, in this court's view it would be necessary for defendant to establish that thirty years ago this court was under a duty to advise him that a collateral consequence of his guilty pleas might include subsequent action by DMV to permanently deprive him of his driving privileges. Criminal courts are not required to advise a defendant of all the ramifications of a guilty plea, but only those which are a direct consequence of such a plea ( People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ); (see also, People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Ford and Peque read together define a direct collateral consequence as one that has a definite, immediate and automatic impact on the defendant's punishment (see Ford supra at 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 ; Peque supra at 184-185, 980 N.Y.S.2d 280, 3 N.E.3d 617 ) (direct consequences include forfeiture of trial rights, imposition of a mandatory term of imprisonment and the imposition of mandatory post release supervision). Peque reversed only that portion of Ford which held that the court was not required to notify the defendant that deportation from this country may be a direct consequence of his guilty plea; otherwise, Peque left intact Ford’ s description of the types of collateral consequences a trial court is not required to advise the defendant of at the time of the guilty plea (see Peque supra at 195-196, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). Of relevance here, the court in Ford held that a trial court is not required to advise a defendant that his plea of guilty may result in the loss of his driver's license because it is a collateral consequence of a guilty plea unique to each defendant and generally results from action of an agency the court does not control ( Ford supra at 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 ). Therefore, applying the reasoning of Ford to this case, since the loss of his driving privileges is a collateral consequence of his plea unique to defendant and controlled by DMV, there are no procedural or other defects arising from the 1992 pleas in this court that would warrant coram nobis relief.
Although not expressly raised by defendant in his written submission, it may be argued that the permanent loss of his driving privileges is fundamentally unfair and the DMV regulations applied to his specific circumstances violate due process. There do not appear to be any appellate level cases on point. There are trial level cases in which courts have vacated certain traffic convictions due to the impact of 2012 DMV regulations on guilty pleas rendered years earlier finding that such defendants did not bargain for a permanent loss of their privilege to drive in New York State, and it is fundamentally unfair to allow such convictions to stand ( People v. Sora, 2021 WL 6805865 [Greene Cty Ct. 2021] ); ( People v. Velte, 61 Misc. 3d 331, 81 N.Y.S.3d 723 [Poughkeepsie City Ct. 2018] ).
In People v. Sora , defendant sought coram nobis relief vacating a thirty-year old conviction for the two-point violation of disobeying a traffic control device which caused him to meet the 20-point threshold for a serious driving offense. The court in Sora in granting relief found as follows: that defendant would not have pleaded guilty had he known that as a result of his plea he would someday lose his ability to drive; that his poor driving was traced to alcohol abuse and he maintained his sobriety for many years; and, the permanent loss of his license posed a severe hardship to his ability to earn a living (see People v. Sora ). The court in People v. Velte found that even though the court in accepting a pre-2012 guilty flee was not required to advise a defendant of the possible loss of his license as a collateral consequence, a plea entered without knowledge of such a consequence cannot be deemed knowing particularly where it has a grave impact upon the ability to maintain a living or earn wages based on the ability to drive to and from the place of employment (see Velte supra at 335, 81 N.Y.S.3d 723 ).
For the reasons set forth herein, this court finds the reasoning of Velte and Sora unpersuasive and declines to follow said holdings. The court finds the holdings of ( People v. Wheaton, 49 Misc. 3d 378, 17 N.Y.S.3d 586 [Cty Ct. Seneca Cty. 2015] ) and ( People v. Avital, 64 Misc. 3d 483, 103 N.Y.S.3d 812 [Justice Court Town of East Fishkill 2019]) to be more persuasive and compelling. In determining whether coram nobis relief is warranted, Wheaton properly focuses upon whether a court has a duty to advise a defendant of all the possible consequences of a guilty plea. Avital correctly points out that it is not necessarily the guilty pleas in the court in which the defendant seeks coram nobis relief that led to a lifetime suspension of his license; rather it is the entirety of his driving record that has brought him within the purview of the DMV regulations.
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 § 136.The court in Wheaton denied the application because in taking the plea the court had no duty to advise of collateral consequences and "defendant's grievance lies with the enactment and enforcement of the new [DMV] regulation, not the manner of his conviction" ( Id . at 379 ). In Avital , the defendant moved for coram nobis relief to vacate convictions for speeding in zone and lane change hazard imposed pursuant to guilty pleas in 2004 and 2007 respectively, after the DMV denied his application for re-licensure on the ground that he had three or four prior alcohol related convictions and had accumulated 20 or more points within the look back period (substantially the facts present in this case). The court in Avital denied the application finding that the 2004 and 2007 convictions in the justice court did not themselves lead to the loss of his license; rather the DMV considered his complete deficient driving record. Further, the court in Avital aptly stated "were the Court to grant the Defendant's motion, it would, in effect, be invalidating the [DMV] Regulations as applied to Defendant. In light of his driving history, the Defendant appears to be exactly the type of problem driver the Regulations were promulgated to address" ( Avital supra at 486,, 103 N.Y.S.3d 812 ); see also People v. Capraro, 51 Misc. 3d 1212(A), 36 N.Y.S.3d 408 (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]).
It is axiomatic that a permanent ineligibility for a driver's license results in a significant hardship because while a license to drive is a privilege and not a right, the ability to operate a motor vehicle is a virtual necessity of modern life (except perhaps for those who reside in major metropolitan areas). This court is cognizant of the negative financial impact caused by the permanent loss of defendant's driver's license, but this negative impact would be present in nearly every case involving the revocation of a driver's license, and it is not unique to this defendant. Further, the defendant has submitted a substance abuse evaluation from Douglas Kabat, LCSW. Having reviewed this evaluation, the court commends the defendant for "full and sustained remission from his alcohol use" (See Report of Douglas Kabat, LCSW dated 7/25/2022). Further, it is the opinion of Mr. Kabat that defendant is "not a threat to public safety" (id.).
However, the regulatory scheme established by DMV using its specialized expertise must be afforded a high degree of deference in this case (see Acevedo 29 N.Y.3d at p 226, 54 N.Y.S.3d 614, 77 N.E.3d 331 supra ) Concededly, this court has the discretion to use coram nobis to correct a plain injustice, but it's discretion in this regard should be guided by the following factors: 1) the totality of defendant's driving record (i.e., total points); 2) the nature of the conviction(s) he seeks to vacate; 3) the age of the convictions he seeks to vacate considered along with the time he drives relatively infraction free; and, 4) other factors, such as a lack of legal representation at the time of the plea.
The DMV regulations consider defendant's entire driving record and even in cases where, as here, he has three prior alcohol related convictions, he may be relicensed so long as he is otherwise eligible. Here, due to numerous other motor vehicle convictions (over 30 points in the look back period and over 40 total lifetime points) defendant was found by DMV to have committed a "serious offense" and thereby deemed permanently disqualified from driving in New York state. A fair review of defendant's lifetime driving record shows that it is poor. He is not able to plead for the vacatur of a two or a three-point motor vehicle conviction. Instead, he seeks to vacate a conviction for an alcohol related offense, a conviction the court should set aside only when a strong justification is present given that the DMV regulations are designed to promote public safety on the roads and highways. Defendant was 30 years old at the time of the 1992 alcohol related conviction and no compelling justification is offered to vacate it. Regarding the age of the convictions, unlike Sora which involved a 1989 non-alcohol related offense, defendant here has another alcohol related offense as recent as 2009 and a traffic infraction in late 2012, within the last ten years. Finally, defendant raises no claim regarding lack of counsel at the time of his pleas in this court.
DMV, the agency vested with executive authority, has determined that defendant's lifetime driving record renders him ineligible to drive. This court will not interfere with the prerogatives of the DMV by vacating guilty pleas that appear to have been knowingly and voluntarily entered. Further, applying the factors noted above, there is no compelling justification for this court to override the administrative regulations of DMV in this specific case. Based on the foregoing, it is hereby
ORDERED, that defendant's application is in all respects denied.