Opinion
No. 04110046
10-14-2023
The People of the State of New York, v. Benjamin Phommanirat, Defendant.
Sandra Doorley, District Attorney, Monroe County (Elizabeth D. Buckley and Kirby W. Leggett [awaiting admission] of Counsel), for plaintiff. Derek S. Wild, Rochester, for defendant.
Unpublished Opinion
Sandra Doorley, District Attorney, Monroe County (Elizabeth D. Buckley and Kirby W. Leggett [awaiting admission] of Counsel), for plaintiff.
Derek S. Wild, Rochester, for defendant.
Hon. Thomas J. DiSalvo Webster Town Justice
History of the Case.
The defendant was issued a uniform traffic information on October 31, 2004, charging him with speeding in violation of VTL 1180 (b). Specifically the accusatory instrument alleged that the defendant was going 79 miles per hour in a 55 mile per hour zone, which would be a 6 point violation. The defendant's first court date was scheduled for November 9, 2004. However, that date was adjourned to December 15, 2004, which was the defendant's initial court appearance. The matter was then adjourned to March 2, 2005, which was the date the defendant took advantage of the plea offer that permitted him to plead guilty to failure to obey a traffic control device, pursuant to VTL § 1110 (a), which is a two point non-speeding violation. Webster Court computer records indicate that the court sentenced the defendant to a conditional discharge and imposed only the $55.00 surcharge in effect at that time. Over 18 years later, the defendant through his attorney, filed with the court a "Motion for Coram Nobis Relief" , requesting that the court set aside the judgement of conviction for the failure to obey a traffic control device on the basis that "the plea of guilty was obtained without the advice of counsel". The People have submitted a written response in opposition to the defendant's motion. The People's initial position was to agree to vacate the 2005 conviction. This court did not agree with that position and directed the People to file a response. Argument of said motions took place on October 13, 2023. The sum and substance of the defense counsel's comments were that the prior conviction should be vacated in the interest of justice.
(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)
(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])
Legal Analysis.
The law governing a motion to vacate a judgment of conviction is governed by CPL § 440.10 (1). However, it has been held that "Where the C.P.L. § 440.10 statute does not cover the precise situation for which defendant can seek to set aside the judgment of conviction, the motion can be made by relying upon the common law writ, called a coram nobis petition." (People v. Velte, 61 Misc.3d 331,333, 81 N.Y.S.3d 723,725 [2018]) Presumably that is the reason for defendant's coram nobis motion, rather than a motion being made under CPL 440.10 requesting that the conviction in question be vacated. "Subdivision (2) of CPL 440.10 dictates when a court 'must deny' the motion. Subdivision (3) dictates when a court 'may deny' the motion." Neither sub-section (2) or (3) is applicable to the motion made herein.
(" 'Conviction' means the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instruments." (C.P.L. § 1.20 [13]) " 'Judgment' A judgment [also known as a 'Judgment of Conviction'] is comprised of a conviction and sentence imposed thereon and is completed by imposition and entry of the sentence." (C.P.L. § 1.20 [15])
("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)
(Donnino, Practice Commentaries, McKinney's, CPL § 440.10)
The defendant alleges in his motion that the original uniform traffic information charged him with failure to obey a traffic control device to which he plead guilty. As previously indicated that was not the case. In fact the defendant appeared in court in person for arraignment. He was advised of the said plea offer to the lesser charge that he accepted. Court computer records indicate that the defendant appeared in front of this judge. It has always been the practice of this court for over 22 years to advise a defendant at an arraignment, wherein the defendant was charged with a traffic offense, that he or she had the right to obtain an attorney, the right to a trial and the right to receive a supporting deposition from the police officer. The defendant's affidavit states that prior to his plea he "had not consulted an attorney and did not appreciate the consequences of pleading guilty to these [sic] charges." He further avers that his attorney "now informs me that he could have contacted the Monroe County District Attorney's Office to exercise [his] right to a trial, to request a reduction to the charge, or request enrollment in the Monroe County Traffic Diversion Program." Those allegations seems to imply that he plead to the original charge, which he claims was failure to obey a traffic control device. Such was not the case. The defendant did appear in court. The district attorney was in court at the time of the plea. It should be noted that the defendant, having been born in 1988, would have been just over 17 years of age the time of his plea in March of 2005. This court has never arraigned or taken a plea in a traffic matter without the presence of a parent or other appropriate adult accompanying the minor defendant. In any event the defendant agreed to accept the reduction from the original 6 point speed to the 2 point non-speeding violation. Finally there was no Monroe County Traffic Diversion Program in place at that time. The defendant maintains that the judgment of conviction should be vacated because he did not know that said 2 point violation would 18 years later result in the revocation of his New York State driver licence for an extended period of time by the NYS Department of Motor Vehicles. That the loss of said license would adversely affect his business and would have a negative impact on him personally. He blames the fact that at the time of his plea he "was young, naive, and immature and unaware of the way [his] actions would impact his life". But that since then his "entire outlook of life has changed." All of which the defendant claims would justify his 2005 traffic conviction being vacated.
(Hard copies of the court proceedings from 2005 are no longer in existence.)
(The Court will take judicial notice its regular procedure in that regard.)
(The Court will take judicial notice of its regular practice in that regard as well.)
The defendant did not specify the specific ruling of the Department of Motor Vehicles relative to his driver licence, nor the basis for its action. However, 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. One commentator has stated that "Because of the draconian punishment of denying re-licensing for the lifetime of the driver, attorneys have attempted to use the writ of error corum nobis (CPL Article 440) to eliminate old convictions that act as a bar to re-licensing." However, "To be deemed 'draconian,' the rules promulgated by the Commissioner of Motor Vehicles would need to be overly harsh and severe. The rules are neither and serve a public safety interest and only directly impact those dangerous drivers whom the Commissioner seeks to protect the general driving public from." (People v. Beltran, 77 Misc.3d 1091,1103, 180 N.Y.S.3d 859,868 [2022])
(Rose, New York Vehicle and Traffic Law § 15:3.60 at 208 [Cumulative Supp 2nd ed])
(Id. at 207)
Attorney Representation.
The first assertion raised by the defendant is that he had not consulted an attorney prior to entering his plea. That he now was told by his attorney that "given the nature of the charge, [he] had the right to the assistance of counsel". Defendant's reliance on People v. Rios, 9 Misc.3d 1, 801 N.Y.S.2d 113 (App. Term, 2d Dept, 9th & 10th Jud Dists 2005) is misplaced. That decision resulted in the judgment of conviction for a traffic infraction being reversed. The court held the court failed to advise the defendant of his right to obtain counsel and to an adjournment to obtain an attorney. Furthermore the court held that the court, pursuant to CPL 170.10 (4) (a), "... must take such affirmative action as is necessary to effectuate" those rights. First of all in this case there is no doubt that the defendant was advised of his right to obtain counsel. In addition, the case was adjourned at arraignment for a total of 92 days, wherein the defendant and his parent or guardian had an opportunity to consult an attorney. 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
(Id. at 3, 113-114)
"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])
(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.)
Collateral Consequences.
Next the defendant argues in his coram nobis motion that his conviction should be vacated because he was not aware of the future collateral consequences of his plea of guilty at the time he entered said plea in March of 2005 and that because of his current business responsibilities, loss of his driver license would have a negative financial impact on him and his business. As previously stated, subsequent to defendant's plea of guilty to failure to obey a traffic control device, the NYS Department of Motor Vehicles issued regulations governing the re-licensing driver licenses.
"§ 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 defendant herein does not raise a constitutional objection to the said regulations. Nevertheless, the Court of Appeals has ruled "... that the Regulations were a valid exercise of the Commissioner's rule making authority, consistent with the separation of powers doctrine." (Matter of Acevedo v. New York State Dept. of Motor Vehicles, 29 N.Y.3d 202,226 54 N.Y.S.3d 614,629 [2017]) The Court went on to hold that since the regulations were civil in nature they did not violate the ex post facto provision of the United States Constitution.
(Id. at 229, 631)
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, Wukitshch, 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." He avers that he believed that the only consequence of his plea would be a fine and surcharge, but 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 coram nobis 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. at 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.
Hardship.
The defendant herein maintains that his coram nobis motion requesting that his 2005 plea to failure to obey a traffic control device should be granted because the permanent revocation of his license would adversely affect his ability to successfully run his business and would negatively impact him personally. 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 [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
(This is essentially the argument that the conviction should be dismissed in the interest of justice.)
(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. Therefore, this court finds that the argument of the defendant herein, namely that his motion for coram nobis should be granted because of the adverse affects of not having a driver licence resulting to both himself and his business, to be without merit.
Fundamental Fairness.
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])
Conclusion.
For the reasons set forth herein, the motion of the defendant requesting that the judgement of conviction to the charge of failed to obey a traffic control device, VTL § 1110 (a), be vacated is hereby denied. This constitutes the decision and order of this court.